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“By ‘not very bright’, I mean astoundingly thick”

It wasn’t Simon Curtis’s finest hour. Back in 2006, the quiz show obsessive from West Yorkshire achieved the ignominious record of answering only one question correctly on his chosen specialist subject on ‘Mastermind’. The subject was “The films of Jim Carrey”, which allowed delighted tabloid headline writers to file numerous variations on ‘Dumb and Dumber’, as well as the more generic ‘Disastermind’.

Curtis had several years to get over the public humiliation, before his moment of defeat was recycled on Channel 4’s ‘Awfully Good TV’, presented by comedian David Walliams. And Walliams rubbed copious quantities of salt into the wound with his intro to the clip: “Sometimes in life, you have to know your limitations. If you’re not, let’s say, very bright, it’s probably not a good idea to go on a quiz show that tests your mental agility. And by ‘not very bright’, I mean astoundingly thick.”

“In a multi-channel, multi-platform, ever-connected world, who exactly decides what  constitutes ‘fair’?”

Curtis dispatched a complaint to broadcast regulator Ofcom saying that he was “unfairly portrayed as being of low intelligence”. He said that he had got the questions wrong because he had “plucked the subject out of thin air” while not expecting to get that far in the quiz. He was also irked that the programme failed to note that he’d previously won £250,000 as a contestant on ‘Who Wants to Be a Millionaire’.

Ofcom dismissed Mr Curtis’s complaint, stating that the show “was clearly intended to be a light-hearted and humorous look at past television events” and that Walliams’s quip was “fair comment”. Ofcom does not pass legal judgments – but it does take its lead from the courts, and the definitions of fair comment and libel have been under unprecedented scrutiny over recent years. After all, in a multi-channel, multi-platform, ever-connected world where anybody can say anything about anybody else – and be almost instantaneously heard by anybody else – who exactly decides what constitutes “fair”?

The history of rudeness

English defamation law (which formed the roots of the modern laws in the UK, US, Ireland and most of the Commonwealth) can be traced back as far as the thirteenth century, when civil actions in the reign of Edward I were dealt with by the ecclesiastical courts. By the late nineteenth century, as the era of mass communication was being ushered in, the opportunity to defame others – and the potential impact of defamation – was increasing exponentially. By the turn of the twentieth century, a series of legal precedents had established a broad definition of libel: “A is liable for saying anything to C about B which would be apt to make the average citizen think worse of the latter.”

There are several defences against a claim of libel. Justification – stating that what you said is in fact true – seems to be the simplest, but rarely is. The burden of proof falls on the defendant, and proof can be impossible to come by. How would you, for instance, prove that somebody is “astoundingly thick”? Fair comment is a subtler defence, in which the defendant says that the views they expressed were honestly held and based on facts that are true. The restaurant is terrible because the food arrived cold; the actor is bad because his films have flopped; the quiz show contestant is astoundingly thick because he got one question right on a topic that he chose.

Fair comment is a common defence for journalists in general, and their most vicious sub-set in particular: the critic. To pass expert comment on a play or a purchased plate of food, it would be difficult to rely wholly on proveable fact. Nevertheless, to successfully argue fair comment, the defendant should demonstrate the facts on which their comment was based, and show that the comment was sufficiently separate from the facts for the two not to be confused. And the subjective nature of all of this ensures that the outcome of libel cases is very difficult to predict.

That unpredictability also makes them highly entertaining to observe from the outside. In 1959 Liberace famously took the Daily Mirror to court for libel over a piece written by William Connor (as columnist Cassandra). Connor’s unrelenting dissection of the performer had included saying that he was “a deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother love”. Liberace had (understandably) claimed that this tended to suggest he was – in the parlance of the day – a “homosexualist”. He also (in retrospect, utterly improbably) claimed that he wasn’t any such thing – this in a time when homosexuality remained illegal. Liberace was awarded £8,000 damages, and, in his own words, “cried all the way to the bank”.

“Via the internet and social media, any member of the public can say what the mainstream media are afraid to”

In 1985 the actress Charlotte Cornwell dragged the Sunday People into the dock after TV critic Nina Myskow wrote: “She can’t sing, her bum is too big and she has the sort of stage presence that blocks lavatories.” Cornwell walked away with £11,000 after appeals. The verdicts in these and other high-profile cases were criticised, and underlined the need for clearer definition of the fair comment defence.

More recently in 2008, unfortunate tennis player Robert Dee sued the Telegraph after a front-page headline that read: “World’s Worst Tennis Pro Wins at Last”. Dee had lost 54 consecutive matches in straight sets on the international professional circuit before winning a match in Barcelona, and the Telegraph duly put forward defences of both fair comment and justification. Dee suffered not just a further burst of embarrassing publicity for his record but also the judge ruling in the newspaper’s favour.

Libel cases have rarely been entertaining for those involved – not least because of the sums of money at stake. During the 1980s a string of notorious cases (most infamously Jeffrey Archer’s win against the Daily Star, for which he was awarded £500,000) led to the level of damages being put under scrutiny. “The level of damages to be awarded was for the jury to decide: and they were expected to do so without any appropriate guidance from the judge as to what they might regard as a sensible sum with regard to the nature of the defamatory allegation,” explains Arthur Davidson QC, a specialist in defamation and media law who has worked both as Shadow Attorney General and advisor to major newspaper publishers. “And the Court of Appeal would very seldom interfere with a jury’s award.”

“The level of damages being awarded had become so astronomical, however, that the rules were changed to allow the judge to give guidance as to the parameters of a suitable award – for example between £10,000 and £50,000,” says Davidson. “The Court of Appeal was also given the powers to substitute its own sum for that of the jury if they considered it to be unsustainable.”

Enter The Gillettes

The terrain shifted again in 2010, courtesy of Motown tribute band The Gillettes. When they were booked by Bibi’s restaurant in Leeds, they were probably hoping to bang out a few Four Tops numbers and earn some cash rather than change legal history. The restaurant owners liked the band – but as would become clear later in court, thought that their manager, a Mr Spiller, was a “total tosser, ignorant, rude and aloof”. Hence they decided to book the band directly in future. Mr Spiller was understandably put out, and decided to explain the situation on his talent management website, saying: “The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio,” and: “We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.” The Gillettes sued for libel, and won – as it was determined that Spiller had no defence on the basis of either fair comment or justification.

The appeal case fell to the Supreme Court – the first time the court had dealt with a libel case from its inception. Despite labelling The Gillettes dispute “a considerable… storm in a teacup”, the panel did set out to clarify the fair comment defence further in their eventual ruling, putting it in context for the online age. Lord Walker stated that the fair comment defence was born in a time when the written word was only valued by “a relatively small educated and socially elevated class” – whereas nowadays the internet allows the man on the street to make public comment. He also stated that it would be impossible for readers of comments on the internet to evaluate derogatory comments without detailed information about the facts surrounding them, which will frequently not be laid out.

It was Lord Phillips’s opinion that in future the burden should be put on the defendant to show that he subjectively believed his comment was justified by the facts on which he based it; that there was a case for the public interest necessity to be removed and that such cases were possibly too complicated to be handled by jury trial. He also recommended that, given these clarifications, “fair comment” be branded “honest comment”. And he found in favour of Mr Spiller’s appeal.

Which brings us to now. The Draft Defamation Bill was introduced in March, and after much consultation the Joint Committee gave its feedback, welcoming reform but urging the government to go further – particularly in ensuring judges firmly control cases and give guidance, that costs do not restrict access to justice to those with financial muscle, and that alternative routes to resolution of cases are found where possible.

Defamation in the age of Twitter

What remains to be seen is whether the libel laws, even if fundamentally reformed, can truly keep up with the changes that the digital age has brought over the last decade. The decision to publish on the part of a newspaper editor requires the deployment of vast resources; for the average punter, publishing merely requires the ability to ping out a drunken tweet.

The superinjunction saga in particular has highlighted the disparity between existing law and reality. Jeremy Clarkson recently lifted the injunction he had successfully taken out on reporting of an alleged affair because he felt it had been rendered pointless by the circulation of the rumours online – particularly on Twitter. Injunctions are, in many ways, the last refuge of the wealthy against the chatter of the mob. But they simply don’t work when, via the internet and social media, any member of the public can say what the mainstream media are afraid to.

The future of the slur

This is a pivotal moment for the libel laws in the UK. The final form of the Defamation Bill will have long-lasting and far-reaching consequences – for the balance between freedom of expression and privacy, defence of reputation and public interest, and old-fashioned principles and the realities of the wired, modern world. Perhaps after a decades-long battle that has involved outraged actresses, faltering quiz show contestants, Motown tribute acts, unfortunate tennis players and one ice-covered heap of mother love, we may finally get to an agreed definition of what we may say about each other publicly, and consider it fair. l

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