Duhaime's Law Dictionary


Fair Comment Definition:

A comment made which though defamatory, is not actionable as it is an opinion on a matter of public interest.

Related Terms: Defamation, Cartoon

A defence to a claim alleging defamatory remarks.

Gatley on Libel and Slander adopt the following words to describe fair comment:

"... a defence to an action of libel or slander that the words complained of are fair comment on a matter of public interest. The right of fair comment is one of the fundamental rights of free speech and writing .. and it is of vital importance to the rule of law on which we depend for our personal freedom. The right is a bulwark of free speech....

"There are matters on which the public has a legitimate interest or with which it is legitimately concerned and on such matters, it is desirable that all should be able to comment freely and even harshly, so long as they do so honestly and without malice."

In the Law of Defamation in Canada, author R. Brown comprehensively sets the defence out as follows:

"Everyone is entitled to comment fairly on matters of public interest.

"Such comments are protected by a qualified privilege if they are found to be comments and not statements of fact, and are made honestly, and in good faith, about facts which are true on a matter of public interest.

"A comment is the subjective expression of opinion in the form of a deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof.

"In order to be fair, it must be shown that the facts upon which the comment is based are truly stated and that the comment is an honest expression of the publisher’s opinion relating to those facts. Where a comment imputes evil, base or corrupt motives to a person, it must be shown that such imputations are warranted by, and could reasonably be drawn from those facts.

"The comment must be made on a matter of public interest. It could be of public interest because of the importance of the person about whom the comment is made, or because of the event, occasion or circumstances that give rise to the opinion.

"The protection may be lost if it is shown that the comment was made maliciously, in the sense that it originated from some improper or indirect motive, or if there was no reasonable relationship between the comment that was made and the public interest that it was designed to serve."

"... it is a defence to an action for libel or slander if the words used are fair comment on a matter of public interest."

Lord Denning, in London Artists Ltd. v. Littler, added:

"In order to be fair, the commentator must get his basic facts right.  The basic facts are those which go to the pith and substance of the matter."

In Makow v Winnipeg Sun, Justice Monnin wrote:

"Everyone has a right to comment on matters of public interest provided he does so fairly and honestly and such comment, however severe, is not actionable.

"In order to be successful, the defendants must meet the following criteria: the words objected to must be comment and not statement of fact; the comment must be fair; (and) the comment must be on a matter of public interest."

In Creative Salmon Co. v Staniford, Justice Gerow adopted these words:

"To be fair, a comment must be based on facts truly stated and must not contain imputations of corrupt or dishonourable motives on the person whose conduct is criticized, save insofar as such imputations are warranted by the facts.

"Another necessary ingredient of the defence of fair comment is that the person making the statement must have an honest belief in the truth of the comment.

"The onus is on Mr. Staniford (the Defendant) to prove that the statements were made honestly and fairly.  In order to do so, he must satisfy both a subjective and objective test: subjective honesty of belief in the defamatory statement, that is, the comment is one which a fair minded person would honestly make on the facts proved; and objective fairness, in the sense that the comment is one which a person could honestly make on the basis of all the facts known to the defendant."

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