Burstein v Associated Newspapers Ltd

The Evening Standard published a review of the Claimant’s opera Manifest Destiny which the Claimant contended suggested meant that he (a) was a sympathiser with terrorist causes and actively promotes such belief in his artistic works; and (b) applauded the action of suicide bombers and raised them to a level of heroism. The Defendant applied to Eady J to have the claim dismissed under Part 24 as having no realistic prospect of success in view of the pleaded defence of fair comment. The Defendant also attacked the Claimant’s meaning as being one that the words were incapable of bearing. Eady J declined to order summary judgment or to strike out the Claimant’s meaning on the basis that it was for the jury to decide whether the words bore the Claimant’s meaning and/or whether the words were fact or comment. The Defendant appealed.

(1) whether the Court of Appeal should interfere with the Judge’s ruling on meaning;

(2) whether the words were capable of being held by a jury to be a statement of fact rather than comment; and

(3) whether, if the words were comment, they were based on true facts and whether the comment was objectively “fair” in the sense of being honestly held.

Allowing the appeal and dismissing the claim:

(1) meaning (a) could only be reached by a “strained interpretation” and no reasonable jury could find it conveyed by the review. Meaning (b) would be allowed to remain provided it was clear that it was referring to the particular opera;

(2) the article was obviously a review of the work and no reasonable person could read it as being otherwise. There was no suggestion that the reviewer was acquainted with the Claimant. Value judgments are not something that a writer should be required to demonstrate are objectively valid. Even if the article attributed motive that did not take it outside the protection of comment; and

(3) having watched the opera and reading the libretto there was nothing in it that would entitle a jury to conclude that the views of the writer were not honestly held.

At first instance the Judge had ruled that it was a matter for the jury to decide whether the review made an allegation of fact against the Claimant. He did so on the basis that he thought that it might attribute motivation behind the genesis of the opera. The Court of Appeal, relying upon Branson v Bower, took the view that attribution of motive – in circumstances where it would be clear to the reader that the deduction was on the basis of the work being reviewed rather than personal experience of the Claimant – did not take the matter outside the protection of comment.

The Claimant’s application to the European Court of Human Rights was declared inadmissible on 7 September 2010.