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Media law: Landmark changes to defamation defence law

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The supreme court has made some 'honest' changes to a historic libel defence in UK defamation law.

The move follows a recent court case between a booking agency and an obscure musical act.

The case between The Gillettes and agent Jason Spiller of 1311 Events dates back to over six years ago.

Spiller signed the band in 2004, but dropped them over a bookings dispute. He published an online statement claiming The Gillettes were "not professional enough" to be represented by his agency.

The Gillettes sued for libel in 2009 and during the trial, Mr Justice Eady disallowed the defence of fair comment to be used by the defendant Mr Spiller.

This decision was upheld by the court of appeal, but was overturned by the supreme court on 1 December 2010.

Lord Walker in his judgement made reference to the changing technological world in which we live as his reason for reviewing and changing the law. It was also renamed honest comment.

Lord Walker said: "[T]he defence of fair comment (now to be called honest comment) originated in a narrow form in a society very different from today's."

Fair comment law dates back to the 19th century and was originally created to protect art critics from being sued for libel for expressing opinion on books and plays.

But times have moved on. Changes in the modern media and the onset of the internet have altered the way we express opinion and the sheer volume of people who are able to publish opinion.

Lord Walker added: "Millions now talk, and thousands comment in electronically transmitted words, about recent events of which they have learned from television or the internet.

"Many of the events and the comments on them are no doubt trivial and ephemeral, but from time to time (as the present appeal shows) libel law has to engage with them. The test for identifying the factual basis of honest comment must be flexible enough to allow for this type of case, in which a passing reference to the previous night's celebrity show would be regarded by most of the public, and may sometimes have to be regarded by the law, as a sufficient factual basis."

Honest comment is now a libel defence fit for the celebrity and internet ages. The onus is even less on the publisher than before to prove a factual basis for comments.

It would seem fair comment, the libel defence from the Victorian age, has finally been brought up to date for the 21st century.

Does the new honest comment law really cater for the internet generation?

Will freedom of speech truly benefit by the new law?

Has UK defamation law been brought up to date for the digital age?

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