Lawyers whose clients are public officials, public figures, and even journalists, may be interested in learning about the defence of fair comment. This is an important legal principle for someone who regularly engages in public discourse or publishes commentaries on public affairs. Understanding this defence is helpful whether a counsel is for the plaintiff or the defendant in a defamation case.
What is a fair comment?
The principle of fair comment is a known common law defence against the tort of defamation (libel and slander). Here, an allegedly defamatory statement becomes inactionable because the subject matter of the statement or comment:
- is of public interest, such as matters of national interest, or
- on the conduct of public officials that are related to their functions
Aside from the defence of fair comment, there are other defences that can be raised in an action for defamation, such as:
- truth or justification
- absolute or qualified privilege
- responsible communication on matters of public interest
Fair comments are also related to the defence of responsible communication on matters of public interest. Watch this video to know more about these defences against defamation:
Consulting with a lawyer in the field of defamation can also be helpful when learning about the remedies and defences in defamation cases. For this, you can go to our directory of the Lexpert-ranked best defamation lawyers for media litigation in Canada.
Principle behind the law on fair comments
The idea in a fair comment is that it’s a protected speech to allow citizens, including journalists and their publishers, to criticize the powers-that-be. This is to uphold the country’s democracy, where public officials and figures are beholden to the people.
However, the exercise of criticism must be within the bounds of the law — it must be fair, objective, and must afford the other party the opportunity to explain their side of the story. As such, this defence is not absolute. For instance, the court can decide in favour of the plaintiff when the defendant exceeded the use of this defence, or when its elements are not proved by the defendant.
The elements of the fair comment defence
The defence of fair comment is available for a defendant in a case for defamation, but only if they can prove the following elements:
- that the subject expression was a comment or an opinion, and is not a fact
- that the matter being commented on is of public interest
- that the comment was based on true and provable facts
- that any reasonable person could express the comment or opinion based on the same facts
- that the comment was not malicious
Meaning of “public interest”
While there is no definite meaning of public interest, the Supreme Court (the Court) in Grant v. Torstar Corp., 2009 SCC 61 clarified its meaning when used in a defence against defamation. To determine if the publication (comment or opinion) is a matter of public interest:
- the subject matter must invite the attention of the public, or where the public (or its segment) has some substantial concern, because it affects the welfare of citizens or there’s considerable public notoriety or controversy
- the whole publication must be considered, and not just its isolated part where the alleged defamatory statement was made
- the meaning of public interest is not confined to publications about the government and political matters, and it is also not necessary that the plaintiff is a “public figure”
What is a “true and provable fact”
When the elements refer to a true and provable fact, it simply means that the comment or opinion must be objectively based on accurate and true facts. This can be about the plaintiff’s conduct as a public official or a matter of public interest. This means that when the comment or opinion turns out to be false or malicious, then the defence of fair comment becomes unavailable.
Malice and shifting of burden of proof
Case law further guides not only the defendant who uses the fair comment defence, but also the plaintiff when rebutting this defence. In WIC Radio Ltd. v. Simpson, 2008 SCC 40, the Court held that this defence may be defeated if the plaintiff can show that “the defendant was subjectively actuated by express malice.”
When invoking this defence, the defendant will first prove during trial that all its elements are present. The onus then switches to the plaintiff, who can then rebut such defence by establishing that there was malice on the part of the defendant.
What is the test for fair comment?
In the case of Hansman v. Neufeld, 2023 SCC 14, the Court reiterated the test for defence of fair comment. It says that one of the elements of fair comment is to satisfy an objective test: “could any person honestly express that opinion on the proved facts?”
In other words, the defence is unavailable if the subject comments or opinions cannot be held or believed by a rational person, based on the facts that the comments or opinions cling to.
Are there limitations to the fair comment defence?
Based on our current case law, there are a lot of limitations to this defence. Defendants in defamation cases must check these limitations, so that any action for defamation is prevented, or when filed, is properly justified. Here are some of the limitations when using this defence:
- defamation in civil law, such as in Québec, operates differently with the common law concept of defamation, specifically that the defence of fair comment is applicable only to opinions (Prud'homme v. Prud'homme, 2002 SCC 85)
- defendant must provide the comment or opinion’s audience with the facts upon which it is based, or the facts must be widely known and understood by them, so that they can decide for themselves about the value of the opinion
To learn more about the defence of fair comment, you can reach out to the best law firms for defamation and media litigation in Canada as ranked by Lexpert.