Fair comment
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Fair comment is a legal term for a common law defense in defamation cases (libel or slander).
[edit] United States
In the United States, the traditional privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff."[1].
The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the U.S. Supreme Court's ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). This case relied on the liability standard of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. If "actual malice" cannot be shown, the defense of "fair comment" is then superseded by the broader protection of the failure by the plaintiff to show "actual malice."
Each state writes its own laws of defamation, and the laws and previously decided precedants in each state vary. In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.[2]
It is still technically possible to rely only on the common law defense of "fair comment," but since there is no federal law of defamation, the Times v. Sullivan case, decided by the U.S. Supreme Court, extends over state courts as a powerful legal precedant, and it provides more legal protection to a defendant, since under the concept of "actual malice," the absolute truth of the assertion need not be demonstrated.
For more on U.S. defamation laws, see: Media Libel - University of Houston
[edit] Canada
In Canada, for something to constitute fair comment, the comment must be on a matter of public interest (excluding gossip), a fair and honest expression of the author's opinion, based on known and provable facts, and with no actual malice underlying it. The cardinal test of whether a statement is fair comment is whether the author honestly believed the opinion, and whether it could be drawn from the known facts. It should also be obvious that the comment is an opinion and is not purporting to be a fact (Crawford 2002, pp. 48-52). (See Chernesky v. Armadale Publications Ltd. [1978] 6 W.W.R. 618 (S.C.C.))
[edit] References
- Crawford, Michael G. The Journalist's Legal Guide, Carswell, 2002
