SCC broadens law of fair comment

"We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones." Binnie J. SCC.
The Supreme Court of Canada has made a broader ruling in a private defamation case, WIC Radio Ltd. v. Simpson, 2008 SCC 40, attempting to better balance the competing interests of comments, opinions, defamation and libel.

Key excerpts are below, written by Binnie J. for the majority view:

Per McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.: "The trial judgment dismissing the action should be restored. M’s expression of opinion, however exaggerated, was protected by the law. M’s editorial was defamatory, but the trial judge was correct to allow the defence of fair comment...."

"Although this is a private law case that is not governed directly by the Canadian Charter of Rights and Freedoms, the evolution of the common law is to be informed and guided by Charter values. The law of fair comment must therefore be developed in a manner consistent not only with the values underlying freedom of expression, including freedom of the media, but also with those underlying the worth and dignity of each individual, including reputation. A court’s task is not to prefer one set of values over the other, but rather to attempt a reconciliation. ..."

"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...."

Per LeBel J.: "Since the issue was not raised before this Court, the trial judge’s finding that the editorial was defamatory should not be interfered with. However, although the threshold for establishing prima facie defamation is low, courts should not be too quick to find defamatory meaning, particularly where expressions of opinion are concerned. Triers of fact should be mindful of ensuring that the plaintiff’s reputation is actually threatened by the impugned statements before turning to the available defences. The test is whether, in the factual circumstances of the case, the public would think less of the plaintiff as a result of the comment. Relevant factors to be considered in assessing whether a statement is defamatory include: whether the impugned speech is a statement of opinion rather than of fact; how much is publicly known about the plaintiff; the nature of the audience; and the context of the comment. In this case, the impugned statement constituted comment rather than fact....In any event, the defence of fair comment is applicable. To satisfy the defence, a defendant should only be required to prove that: (a) the statement constituted comment; (b) it had a basis in true facts; and (c) it concerned a matter of public interest.... "

"The fair comment defence should not include an element of honest belief. Although this element continues to exist in some common law countries, its influence and utility have been waning such that it no longer offers anything of value in the exercise of balancing the right to comment fairly on matters of public opinion against the right to reputation. The elimination of that element would constitute a formal recognition that it is no longer justifiable, for purposes of the fair comment defence, to judge a person’s opinions on an objective basis other than to require that they have some basis in fact. Furthermore, since the requirements of a basis in fact and honest belief address the same issue, an honest belief requirement provides no additional protection to reputation. There is therefore no reason to retain that element. Eliminating it is an incremental change. This Court has the power — indeed the responsibility — to make such changes when the common law falls out of step with its underlying principles and with modern values, and when a test has proven to be unworkable or to serve no useful purpose...."

"If the defendant is successful in establishing the elements of the fair comment defence, the inquiry may turn to malice, which the plaintiff must prove if alleged. Proof of malice may be drawn from the language of the assertion itself or from the circumstances surrounding the publication of the comment. It may involve inferences and evidentiary presumptions. In order to defeat fair comment, malice must be the dominant motive for expressing an opinion...."

Per Rothstein J.: "The statements in question were defamatory but the defence of fair comment applies. To satisfy the fair comment defence, there is no requirement to prove objective honest belief. The defence of fair comment should only require the defendant to prove (a) that the statement constituted comment, (b) that it had a basis in true facts and (c) that it concerned a matter of public interest...."

The decision does not remove the responsibility of commentators to restrain from comments which are inherently defamatory or libelous, but it does broaden the context in which comments can be made without them being necessarily defamatory. It recognizes and broadens the view that an "outrageous" comment, while it may be outrageous, isn't inherently defamatory simply because it is outrageous.

At the same time, it establishes that "outrageous" commentary must have defensible value if its to avoid being defamatory. Writers and commentators would do well to review the various tests outlined in this decision and use them to guide their responses when taking on controversial issues and players.

Ezra Levant expands the discussion on this decision, particularly in regard to current freedom of speech issues before the various Human Rights Commissions.