Top court clarifies ‘fair comment’ libel defence

Canada’s highest court has clarified when an opinion is fair commentand protected from a libel suitin a ruling that overturns a libel award against Vancouver radio talk show host Rafe Mair.

The June 27 ruling, endorsed by all nine judges, acknowledges that “public controversy can be a rough trade and the law needs to accommodate its requirements.” An “overly solicitous regard for personal reputation,” the court added, should not be permitted “to ‘chill’ freewheeling debate on matters of public interest.” Mair had invoked images of Nazi Germany and the Ku Klux Klan to criticize an activist who sought to ban schoolbooks depicting same-sex parents.

The Canadian Journalists for Free Expression and the Canadian Newspaper Association are hailing the ruling — the first on fair comment under the Charter of Rights and Freedoms — as a significant victory for freedom of expression. Read the CBC News and Canadian Press reports. Legal affairs reporter Tracey Tyler’s report in the Toronto Star is posted below.

Decision on boundaries of fair comment will make it easier to engage in freewheeling debate

By Tracey Tyler
Legal Affairs Reporter

Toronto (June 28, 2008) — While making it perfectly clear that nobody’s reputation should be brushed aside like “roadkill,” the Supreme Court of Canada made it easier yesterday for radio “shock jocks” and devil’s advocates to engage in freewheeling public debate.

In an important case about the boundaries of free speech, the court struck down a B.C. Court of Appeal ruling that found controversial Vancouver radio talk show host Rafe Mair defamed a family values advocate who was against having books depicting gay parents used in the province’s schools.

In an on-air editorial in 1999 that took issue with Kari Simpson’s crusade, Mair suggested she was displaying the kind of bigotry more commonly associated with Hitler or some notoriously racist Southern U.S. governors.

The case turned on the issue of what constitutes “fair comment,” a defence frequently used in defamation cases.

While courts hearing these cases must strive to balance freedom of expression with the protection of a person’s reputation often their most valued asset many courts around the world have already decided defamation law should be modified to give the media a wider berth to report on important issues without fear of being sued, the court said.

“Public controversy can be a rough trade and the law needs to accommodate its requirements,” Justice Ian Binnie said in writing for the seven-judge majority.

“An individual’s reputation is not to be treated as regrettable but unavoidable roadkill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to `chill’ freewheeling debate on matters of public interest,” said Binnie.

It was the first time in nearly 30 years the court has considered the limits of “fair comment.”

“It is a long overdue first step by the Supreme Court to modernize libel law, to properly protect free speech,” said Paul Schabas, president of Ad Idem, an association of media lawyers, which intervened in the case.

“The Supreme Court has heard very few libel cases in the last few decades and this is the first one where they’ve really weighed in with an analysis that’s (anchored in) the importance of free speech,” he said.

Until yesterday, a crucial question in determining whether a harmful remark constitutes “fair comment” was whether the person who made it was expressing their own honestly held view. The court revised that component of the test so the question now is whether any person could honestly voice the same view.

Mair, a former Social Credit cabinet minister, made his comments on CKNW radio. A B.C. trial judge dismissed Simpson’s case against Mair and the station’s parent company, WIC Radio Ltd., but her decision was overturned on appeal.

(Republished from The Toronto Star. Used by permission.)