Fair Comment

The Supreme Court of Canada handed down an important decision on defamation this morning, regarding Rafe Mair's comments about anti-gay activist Kari Simpson. From the headnote:

The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. “Chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self‑censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.

It is therefore appropriate to modify the “honest belief” element of the fair comment defence so that the test, as modified, consists of the following elements: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice.

In this case, the public debate about the inclusion in schools of educational material on homosexuality clearly engages the public interest, and the facts giving rise to the dispute between M and S were well known to M’s listening audience, and referred to in part in the editorial itself. The third element of the defence is also satisfied since the sting of the libel was a comment and it would have been understood as such by M’s listeners. M was a radio personality with opinions on everything, not a reporter of the facts. Moreover, S did not challenge the view that M’s imputation that she would condone violence towards gay people was a comment not an imputation of fact. With respect to the fourth element, the objective “honest belief” test represents a balance between free expression on matters of public interest and the appropriate protection of reputation against damage that exceeds what is required to fulfill free expression requirements. Here, there was a sufficient nexus between S’s public declarations on homosexuality and the defamatory imputation to meet this element. S’s use of violent images could support an honest belief on the part of at least some of her listeners that she would condone violence towards gay people even though M denied that he intended to impute any such meaning. The trial judge did not explicitly apply the “objective honest belief” test to the imputation that S “would condone violence”. However, having regard to the trial judge’s reasons as a whole, and considering both the content of some of S’s speeches already mentioned, and the broad latitude allowed by the defence of fair comment, the defamatory imputation that while S would not engage in violence herself she “would condone violence” by others, is an opinion that could honestly have been expressed on the proved facts by a person prejudiced, exaggerated or obstinate in his views. That is all that the law requires. M’s commentary was not actuated by malice in the sense of improper motive and S did not appeal against the trial judge’s conclusion that M’s fair comment defence was not vitiated by malice.

Damian P.

Update: the Canadian Press report:

Freedom of expression requires that the media be capable of publishing provocative stories and comments without living in constant fear of lawsuits for libel and defamation, the Supreme Court of Canada said Friday.

In an 8-1 ruling that set out to modernize libel law and the defence of fair comment, the court found that a controversial B.C. broadcaster – Rafe Mair – did not libel a Christian-values advocate, Kari Simpson.

Mr. Mair, a former Social Credit cabinet minister, made comments during a Oct. 25, 1999, broadcast on radio station CKNW as part of an editorial about Ms. Simpson.

He took strong issue with Ms. Simpson's having publicly supporting a Surrey school board decision to ban three books depicting same-sex parents.

This decision deals with private legal action for defamation, not a human-rights complaint, so it doesn't directly apply to the Maclean's or Western Standard proceedings. But I hope the adjudicators take note of the judgment, all the same.

Posted by damian at June 27, 2008 11:32 AM