Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
A well-known talk radio host compared a social activist to Hitler, the KKK, and “skinheads.” The activist sued claiming defamation. The Canadian Supreme Court found that, although defamation had occurred, the speech was protected by the “fair comment” defense that allows for opinion.
The defendant, Rafe Mair, is a well-known and sometimes controversial Vancouver radio talk show host. He discussed on air the political activities of plaintiff Kari Simpson, who is opposed to any positive portrayal of a homosexual lifestyle.
Simpson believed that introducing materials dealing with homosexuality into public schools would promote a homosexual lifestyle, while Mair argued that it would simply teach tolerance of homosexuality. On the air, Mair compared Simpson to Hitler, the Klu Klux Klan, and to skinheads. Simpson brought an action against Mair and his employer, WIC Radio Ltd., claiming that parts of the broadcast were defamatory.
In the original trial, Mair testified that he did not intend to condone violence, but only wanted to portray Simpson as an “intolerant bigot.” The trial judge dismissed the action based on the argument that although the statements were defamatory, the fair comment defense applied. The Court of Appeal for British Columbia reversed the trial judgment, finding that the fair comment defense did not apply. The defendant appealed.
Binnie, J., delivered the majority opinion. Under the “fair comment” defense, a defamatory statement is not actionable because the statement concerns an opinion on a matter of public interest. The Court modified the defense of fair comment to better protect freedom of expression, and prevent publishers from leaving matters of public interest unreported due to fear of expensive and disruptive defamation actions. Because debate on matters of public interest is important, and because matters of public interest are often controversial, the Court found that the law should be changed to promote such debate and avoid both censorship and self-censorship.
To effectuate this end, the Court abolished the subjective “honest belief” component of the fair comment defense. This rid of the subjective opinion on whether a third person considered the defamatory remarks to be true, and instead implicated an objective test for honest opinion. The Court set out a new four-prong test for the fair comment defense to apply: 1. the comment must be on a matter of public interest; 2. the comment must be based on fact; 3. the comment must be recognizable as a comment, and not a statement of fact; and 4. the comment must be an opinion that any person— including individuals who are especially obstinate, prejudiced, or exaggerated — could honestly express. The defense can be defeated, however, if the plaintiff proves that the defendant was acting out of malice.
The Court found that the Mair’s on-air comments concerned a matter of public interest. The Court further found that the Mair’s audience would take his statements as opinion rather than fact, and at any rate, Simpson did not question whether the statement was a comment rather than a factual statement. The Court also found that Mair’s opinion was not expressed maliciously and that it could honestly have been expressed by a “person prejudiced, exaggerated or obstinate in his views.”
Accordingly, the Court found that, although the statements were defamatory, the fair comment defense applied, and the trial court’s judgment was therefore restored and the case dismissed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Canadian Supreme Court redefined the test for the “fair comment” defense to apply to defamatory statements. The new test requires an objective rather than subjective basis for whether a belief is “honestly held,” thus broadening the circumstances in which the fair comment defense will be successful.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Australian case cited by appellate.
New Zealand case cited by appellate.
Case significance refers to how influential the case is and how its significance changes over time.
All lower courts in Canada are bound to follow the Canadian Supreme Court’s decision in this case under Canadian common law.
Let us know if you notice errors or if the case analysis needs revision.