Facts
In Kemsley v Foot (1952) AC 345, the defendant, a newspaper, published an article with the headline “Lower than Kemsley,” which referred to the plaintiff (P), a well-known newspaper proprietor. The article criticized the conduct of another newspaper unrelated to Plaintiff. In response, Plaintiff brought an action for libel, seeking damages, and Defendant pleaded the defence of fair comment.
Plaintiff sought to have the defence struck out, arguing that there were no facts in the article to support the statement made in the headline.
Issue
The issue was whether D was entitled to plead the defence of fair comment.
Holding
The House of Lords held that for the defence of fair comment to succeed, there must be a sufficient substratum of fact indicated or stated in the words that form the subject matter of the action.
It was not necessary for all the facts upon which the comment was based to be stated. In this case, the substratum of fact was that Lord Kemsley was the active proprietor and responsible for the Kemsley Press, which was being criticized for its low standards. The House of Lords concluded that if there were any facts sufficient to justify the criticism, Defendant would be entitled to succeed on the plea of fair comment. Therefore, the defence was not struck out.
