Supreme Court ruling modernizes defence of fair comment
KIRK MAKIN
From Saturday's Globe and Mail
June 27, 2008 at 9:46 PM EDT
OTTAWA — The media should not live in constant fear of facing a libel suit every time a provocative commentary is published or broadcast, the Supreme Court of Canada said on Friday in a major ruling won by controversial Vancouver radio broadcaster Rafe Mair.
In a 9-0 decision that modernizes the defence of fair comment, the court found that Mr. Mair did not defame Christian-values advocate Kari Simpson when he denounced her stand on a book-banning controversy.
“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,” Mr. Justice Ian Binnie said.
Judge Binnie said that the key to a defence of honest belief – particularly in an era when extravagant overstatement is common – should lie in whether an honest person could have held the same opinion.
Rafe Mair, former B.C. radio talk show host in 2003. (John Lehmann/The Globe and Mail)
Internet Links
Supreme Court of Canada: WIC Radio Ltd. v. Simpson
“We live in a free country, where people have as much right to express outrageous and ridiculous opinions as moderate ones,” Judge Binnie said. “In much modern media, personalities such as Rafe Mair are as much entertainers as journalists.”
Brian MacLeod Rogers, a lawyer who represented a coalition of media organizations in the appeal, said that the ruling “clarifies and strengthens a defence that had fallen into murky depths and had become too unreliable to be counted on when most needed.”
Mr. Mair, a former Social Credit cabinet minister, made his controversial comments during an Oct. 25, 1999, broadcast on radio station CKNW. Using provocative images of Nazi Germany and the Ku Klux Klan, Mr. Mair took issue with Ms. Simpson's public support of a Surrey school board decision to ban three books depicting same-sex parents.
Mr. Mair said that Ms. Simpson's views on the book banning, “took me back to my childhood, when with my parents, we would listen to bigots who with increasing shrillness would harangue the crowds.
“For Kari's ‘homosexual,' one could easily substitute ‘Jew.' I could see Governor Wallace – in my mind's eye I could see Governor Wallace of Alabama standing on the steps of a schoolhouse shouting to the crowds that no Negroes would get into Alabama schools as long as he was governor. It could have been blacks last Thursday night just as easily as gays.”
Ms. Simpson alleged that the commentary was tantamount to saying she would condone violence against gay people.
Judge Binnie said on Friday the media “regularly match up assailants who attack each other on a set topic. The audience understands that the combatants, like lawyers or a devil's advocate, are arguing a brief.
“Of course, the law must accommodate commentators such as the satirist or the cartoonist who seizes on a point of view, which may be quite peripheral to the public debate, and blows it into an outlandish caricature for public edification or merriment,” he said. “Their function is not so much to advance public debate, as it is to exercise a democratic right to poke fun at those who huff and puff in the public arena. This is well understood by the public to be their function.”
Judge Binnie expressed a concern that issues of public interest could go unreported “because publishers fear the ballooning cost and disruption of defending a defamation action. … Public controversy can be a rough trade, and the law needs to accommodate its requirements.”
The legal tests the court set out to determine “honest belief” include:
The comment must be on a matter of public interest.
It must be based on fact.
Although it can include inferences of fact, the comment must be recognizable as comment.
It must be capable of satisfying the question: Could any person honestly express that opinion on the proved facts?