Defamation is a powerful legal concept designed to protect an individual’s reputation. But what happens when that protection clashes with another fundamental right: freedom of expression? The law recognizes that not every negative statement is defamatory, especially when it’s an opinion on a matter of public interest. This is where the defence of “fair comment” comes into play. It’s a crucial legal principle that balances safeguarding reputations with the public’s right to engage in open, honest, and sometimes critical debate. In this post, we’ll dive deeper into this specific defence, exploring its existence, why it exists, and what a defendant must prove to use it successfully.
Understanding Defamation: What the Plaintiff Must Prove
Before turning to the defence, it is helpful to reiterate what is generally needed to establish a claim for defamation. A plaintiff must prove that the defendant has made a statement, that the words used in the statement were defamatory (that is, that they “would tend to lower the plaintiff’s reputation in the eyes of a reasonable person”), that the statement referred to the plaintiff and that the statement was published (see Grant v. Torstar Corp.). In determining the meaning of the words used in the defendant’s statement, consideration needs to be given to their “plain and ordinary meaning,” the context in which they were used, their audience and how the statement was expressed (see Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated).
If a plaintiff proves defamation, the onus moves to the defendant to raise and establish one of the available defences. Several defences are available, but we will discuss one of the most common and significant: “fair comment.”
Why Does the Law Recognize “Fair Comment” as a Defence to a Claim for Defamation?
The defence of fair comment is intended to balance the need to protect individuals’ reputations from “unjustified harm” with the need to permit debate that is in the public interest and freedom of expression more generally (see WIC Radio Ltd. v. Simpson).
What Must Be Proven to Establish the Defence of “Fair Comment Successfully”?
To establish the defence, a defendant must prove that the comment in question (a) was a comment or opinion rather than a statement of fact (though it could include “inferences of fact”), (b) was on “a matter of public interest,” (c) was based on true facts, and (d) was “objectively fair,” in the sense that anyone could “honestly express the comment or opinion based on the proved facts” (see Soliman v. Bordman). However, even if the defendant can establish these elements, the defence can be defeated if the plaintiff proves that the defendant was “actuated by express malice” (see Walsh Energy Inc.).
Concerning the first element, courts distinguish statements of fact from statements that are “comments, opinions, criticism, observations, inferences [and] conclusions” (see Soliman). If the statement in question was a statement of fact (as opposed to an opinion, for example), the defence of “fair comment” will fail. It is also important to note that something may appear to be a statement of fact but actually may be a comment or opinion. The difference is determined “from the perspective of what a reasonable reader would understand the statement to be in the context of the making of the statement” (see Soliman). For example, in the context of political debate, something that may appear to be a statement of fact may be a comment if it includes “loose, figurative, or hyperbolic language” (see Soliman).
What constitutes a “matter of public interest?” There is no comprehensive list of what meets this criterion. It has been held that matters of public interest are “matters that affect people at large so that they may be legitimately concerned about what is going on or what may happen to them or to others” (see Soloman). A matter will be in the public interest if it is an issue “about which the public has some substantial concern because it affects the welfare or concerns of citizens” (see Grist v. TruGrp Inc.). The statement does not necessarily concern a substantial part of the public; what matters is that some public members would have a “genuine interest” in the subject. The statement can also harm the public interest, but it still qualifies.
The third requirement is that the comment on the issue be based on true facts. These facts must have been stated or otherwise known to the statement’s audience, it being important to the defence that the factual foundation for the opinion was clear so that the audience could “make up their own minds about the opinion” (see Walsh Energy Inc.). It is worth noting that, so long as there was a factual foundation for the opinion, it does not matter whether the opinion expressed was reasonable or not (see Levant v. Stirling).
The final requirement is that the comment must have been one that any person could honestly express based on the facts. This does not entail an assessment of the reasonableness of the opinion or whether it arose “fairly” out of the facts. It is also not a “high threshold” to meet. Instead, it is enough if the opinion could honestly be held and had “‘a basis’ in the facts” (see Walsh Energy Inc.).
What Constitutes Malice?
If the comment in the issue was made with malice, then the defence of fair comment will fail. Courts have held that malice includes “spite or ill-will.” However, malice can also be established if a plaintiff can prove the defendant’s comment was made “with an indirect motive or ulterior purpose, dishonestly, or in knowing or reckless disregard for the truth” (see Walsh Energy Inc.). In other words, malice may be established if a plaintiff can prove that the defendant was not acting honestly when they published their comment. Likewise, recklessness may constitute malice and can be established by demonstrating a defendant’s failure to fact-check, be accurate and/or correct errors when brought to the defendant’s attention (see Soliman).
It should also be noted that, even if the defendant honestly believed the impugned comment, this will not defeat a finding of malice if malice was still the defendant’s “dominant motive” (see Soliman).
Milosevic & Associates: Exceptional Representation in Defamation Matters
Navigating defamation claims as a defendant or a plaintiff is a complex legal process with significant consequences. Understanding intricate defences like “fair comment” is critical to protecting your rights. If you are facing a defamation claim or believe you have a case, securing timely and professional legal advice is essential. The experienced defamation lawyers at Milosevic & Associates in Toronto will help protect you, your reputation and your livelihood. Contact us today to schedule a consultation by visiting us online or calling (416) 916-1387.
Defamation is a powerful legal concept designed to protect an individual’s reputation. But what happens when that protection clashes with another fundamental right: freedom of expression? The law recognizes that not every negative statement is defamatory, especially when it’s an opinion on a matter of public interest. This is where the defence of “fair comment” comes into play. It’s a crucial legal principle that balances safeguarding reputations with the public’s right to engage in open, honest, and sometimes critical debate. In this post, we’ll dive deeper into this specific defence, exploring its existence, why it exists, and what a defendant must prove to use it successfully.
Understanding Defamation: What the Plaintiff Must Prove
Before turning to the defence, it is helpful to reiterate what is generally needed to establish a claim for defamation. A plaintiff must prove that the defendant has made a statement, that the words used in the statement were defamatory (that is, that they “would tend to lower the plaintiff’s reputation in the eyes of a reasonable person”), that the statement referred to the plaintiff and that the statement was published (see Grant v. Torstar Corp.). In determining the meaning of the words used in the defendant’s statement, consideration needs to be given to their “plain and ordinary meaning,” the context in which they were used, their audience and how the statement was expressed (see Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated).
If a plaintiff proves defamation, the onus moves to the defendant to raise and establish one of the available defences. Several defences are available, but we will discuss one of the most common and significant: “fair comment.”
Why Does the Law Recognize “Fair Comment” as a Defence to a Claim for Defamation?
The defence of fair comment is intended to balance the need to protect individuals’ reputations from “unjustified harm” with the need to permit debate that is in the public interest and freedom of expression more generally (see WIC Radio Ltd. v. Simpson).
What Must Be Proven to Establish the Defence of “Fair Comment Successfully”?
To establish the defence, a defendant must prove that the comment in question (a) was a comment or opinion rather than a statement of fact (though it could include “inferences of fact”), (b) was on “a matter of public interest,” (c) was based on true facts, and (d) was “objectively fair,” in the sense that anyone could “honestly express the comment or opinion based on the proved facts” (see Soliman v. Bordman). However, even if the defendant can establish these elements, the defence can be defeated if the plaintiff proves that the defendant was “actuated by express malice” (see Walsh Energy Inc.).
Concerning the first element, courts distinguish statements of fact from statements that are “comments, opinions, criticism, observations, inferences [and] conclusions” (see Soliman). If the statement in question was a statement of fact (as opposed to an opinion, for example), the defence of “fair comment” will fail. It is also important to note that something may appear to be a statement of fact but actually may be a comment or opinion. The difference is determined “from the perspective of what a reasonable reader would understand the statement to be in the context of the making of the statement” (see Soliman). For example, in the context of political debate, something that may appear to be a statement of fact may be a comment if it includes “loose, figurative, or hyperbolic language” (see Soliman).
What constitutes a “matter of public interest?” There is no comprehensive list of what meets this criterion. It has been held that matters of public interest are “matters that affect people at large so that they may be legitimately concerned about what is going on or what may happen to them or to others” (see Soloman). A matter will be in the public interest if it is an issue “about which the public has some substantial concern because it affects the welfare or concerns of citizens” (see Grist v. TruGrp Inc.). The statement does not necessarily concern a substantial part of the public; what matters is that some public members would have a “genuine interest” in the subject. The statement can also harm the public interest, but it still qualifies.
The third requirement is that the comment on the issue be based on true facts. These facts must have been stated or otherwise known to the statement’s audience, it being important to the defence that the factual foundation for the opinion was clear so that the audience could “make up their own minds about the opinion” (see Walsh Energy Inc.). It is worth noting that, so long as there was a factual foundation for the opinion, it does not matter whether the opinion expressed was reasonable or not (see Levant v. Stirling).
The final requirement is that the comment must have been one that any person could honestly express based on the facts. This does not entail an assessment of the reasonableness of the opinion or whether it arose “fairly” out of the facts. It is also not a “high threshold” to meet. Instead, it is enough if the opinion could honestly be held and had “‘a basis’ in the facts” (see Walsh Energy Inc.).
What Constitutes Malice?
If the comment in the issue was made with malice, then the defence of fair comment will fail. Courts have held that malice includes “spite or ill-will.” However, malice can also be established if a plaintiff can prove the defendant’s comment was made “with an indirect motive or ulterior purpose, dishonestly, or in knowing or reckless disregard for the truth” (see Walsh Energy Inc.). In other words, malice may be established if a plaintiff can prove that the defendant was not acting honestly when they published their comment. Likewise, recklessness may constitute malice and can be established by demonstrating a defendant’s failure to fact-check, be accurate and/or correct errors when brought to the defendant’s attention (see Soliman).
It should also be noted that, even if the defendant honestly believed the impugned comment, this will not defeat a finding of malice if malice was still the defendant’s “dominant motive” (see Soliman).
Milosevic & Associates: Exceptional Representation in Defamation Matters
Navigating defamation claims as a defendant or a plaintiff is a complex legal process with significant consequences. Understanding intricate defences like “fair comment” is critical to protecting your rights. If you are facing a defamation claim or believe you have a case, securing timely and professional legal advice is essential. The experienced defamation lawyers at Milosevic & Associates in Toronto will help protect you, your reputation and your livelihood. Contact us today to schedule a consultation by visiting us online or calling (416) 916-1387.