Freedom of speech and expression is a fundamental right in most democratic societies, and it plays a crucial role in maintaining a healthy public discourse. However, this freedom is not without limits, as it must be balanced against the need to protect individuals’ reputations from unjustified attacks. In defamation cases, where a statement is alleged to have harmed someone’s reputation, the defence of fair comment can provide a vital safeguard for free speech. This blog post delves into the intricacies of the fair comment defence and explores its significance in defamation law.
The Essence of the Fair Comment Defence
The fair comment defence is designed to protect the right to express opinions on matters of public interest, even if those opinions are unpopular, controversial, or critical of others. At its core, the defence allows a person to express an honest opinion based on accurate facts, without fear of being held liable for defamation. This right to express opinions applies not only to professional critics or commentators but also to ordinary citizens expressing their views on various topics.
To successfully invoke the fair comment defence, a defendant must meet four key requirements:
- The comment must be on a matter of public interest.
- The comment must be based on accurate facts.
- The comment must be “fair” in the legal sense.
- The comment must be made without malice.
Matters of Public Interest
The fair comment defence only applies to comments made on matters of public interest. Although the precise definition of “public interest” can be challenging to pin down, it generally refers to topics that are of concern or importance to the general public or a significant portion of it. This may include issues such as politics, government actions, public figures, public institutions, and matters related to the arts or cultural events.
Based on Accurate Facts
For the defence to apply, the opinion expressed must be based on accurate and true facts. If the facts upon which the opinion is based are proven to be false, the defence may not be available. It is essential to note that a comment can still be protected by the fair comment defence if it is based on a mixture of true and false facts, as long as the comment would have still been “fair” if it were based solely on the true facts.
The “Fairness” of the Comment
A critical aspect of the fair comment defence is the requirement that the comment be “fair” in the legal sense. In this context, “fairness” does not mean that the comment is correct or reasonable. Instead, it refers to the notion of objective honesty, meaning that the comment is one that a person could honestly make based on the facts at hand. This standard allows for a wide range of opinions to be protected, including those that are exaggerated, stubborn, or prejudiced, as long as they are genuinely held beliefs.
The concept of objective honesty is a crucial element in the fair comment defence, and it is intended to strike a balance between free expression on matters of public interest and the protection of individuals’ reputations. This balance requires that a defamatory statement be made with integrity and not serve as a cover for baseless attacks or irrelevant allegations.
Made Without Malice
The fair comment defence will fail if the plaintiff can prove that the defendant’s comment was made with malice. Malice in this context goes beyond spite or ill will and includes any indirect motive, ulterior purpose, or dishonesty in the publication of the comment. The plaintiff must show that the malicious purpose was the dominant motive behind the comment; if malice was not the primary driving force, the defence will still be available.
The Role of Fair Comment in Criticism of the Arts
In the context of arts criticism, the fair comment defence plays an essential role in ensuring that critics can express their honest opinions about various works without fear of legal repercussions. The key question in these cases is not whether the criticism is correct or demonstrates a proper understanding of the work, but whether the critic’s opinion is honestly held and based on accurate facts. Even if a critic’s evaluation is deemed to be exaggerated or prejudiced, it can still be considered fair as long as it represents their genuine viewpoint and does not contain malicious or baseless allegations.
The Wide Scope of Fair Comment
Court decisions have demonstrated that the scope of the fair comment defence is relatively broad, allowing for a wide range of opinions to be protected. One notable example is the case of Mainstream Canada v. Staniford, where a defendant compared farmed salmon to cigarettes and claimed that farmed salmon could be harmful. Despite the contentious nature of these statements, the court found that the defendant could make such assertions because he genuinely believed them. Although this decision was reversed on appeal on other grounds, it illustrates the expansive reach of the fair comment defence under current law.
Statutory Extensions and Media Organizations
In certain circumstances, media organizations may find themselves publishing defamatory statements made by third parties, such as in letters to the editor or online comments. Several provinces have enacted statutory provisions that extend the defence of fair comment to these situations. These provisions generally stipulate that the defence is available as long as a person could honestly hold the opinion expressed, even if it is not proven that the author actually held that opinion.
The Overruling of Cherneskey and the Objective Honesty Test
The Supreme Court of Canada’s decision in WIC Radio Ltd. overruled the controversial majority decision in Cherneskey v. Armadale Publishers Ltd., which had held that media organizations could not rely on the fair comment defence if the author of the statement was unavailable to testify as to their honest belief. The WIC Radio decision established that the correct test for fair comment is objective honesty, meaning that the defence can apply if any person could honestly make the comment based on the facts referred to, regardless of the author’s availability.
The fair comment defence is a crucial component of defamation law that seeks to balance the right to free expression with the protection of individual reputations. By ensuring that individuals can express their honest opinions on matters of public interest without fear of legal repercussions, the defence promotes open and robust public discourse. Although the defence has its limits, the wide scope of protection it provides underscores the importance of free speech in a democratic society.
Example: Baglow v. Smith
The case of Baglow v. Smith involved a defamation lawsuit filed by Baglow, an owner and operator of an internet blog where he posted left-leaning opinions and commentary on political and public interest issues. Although he used a pseudonym for his posts, his true identity was not concealed and appeared to be well-known among political bloggers. Baglow was an outspoken critic of Canada’s involvement in the war in Afghanistan and advocated for the repatriation of Omar Khadr from Guantanamo Bay to Canada. The defendants, Fournier, were a married couple who moderated a conservative-leaning online message board. Smith, another defendant, was a conservative commentator who frequently posted on the Fourniers’ message board and other blogs.
In August 2010, Smith posted a comment on the Fourniers’ message board referring to Baglow as a prominent supporter of the Taliban. Baglow objected to the comment, claiming it was defamatory, and asked the Fourniers to remove it, which they declined to do. The defendants argued that the comment was not defamatory, and even if it were, the fair comment defence applied.
The court ultimately dismissed Baglow’s defamation claim. The judge determined that Baglow had not attempted to hide his true identity and confirmed that the disputed comment referred to him. The judge also found that the defendants had indeed published the comment, as the purpose of a message board is to provide content to its readers. Furthermore, the comment was deemed defamatory, as it could potentially damage Baglow’s reputation in the eyes of a reasonable person.
However, the court determined that the comment pertained to a matter of public interest, and the post in its entirety was considered commentary. As a result, the defence of fair comment was upheld, and Baglow was unable to prove that the defendants had acted with malice.