After months of debate, the UK is finally formally debating a new defamation statute. In early May, Queen Elizabeth II announced in her fancy Speech that defamation reformations outlined in the Lord Lester of Herne Hill’s bill will become a hot Parliamentary topic. In short, the reforms increase free speech rights and restrict jurisdictional standards – which may significantly decrease libel tourism in London.
Due to the large amount of press garnered by the new UK defamation law, the concept of “fair comment” is a hot legal topic. What is fair comment? What does it have to do with defamation law? Is fair comment even an acceptable defense in slander and libel lawsuits in the United States? Below is a quick legal guide to the legal concept of “fair comment.”
I Just Need A Quick Legal Definition Of ‘Fair Comment and Criticism’
In the most basic terms, fair comment is a common law defense against defamation that aims to guarantee the freedom of the press to express statements on matters of public interest. Generally speaking, a given truthful statement can be considered a “fair comment” so long as it’s not made with ill-will, spite, or with intent to harm.
Justice Brennan, the Supreme Court Judge who wrote a seminal U.S. defamation ruling (New York Times, Inc. v. Sullivan), once explained that the “privilege of the fair comment depends on the truth of the facts upon which the comment is based.”
Is Fair Comment Commonly Used In Defamation Lawsuits In The United States Today?
In 1964, the United States Supreme Court passed down a law-changing ruling in the case of New York Times, Inc. v. Sullivan — it’s the famous defamation lawsuit that made ‘actual malice’ a standard in slander and libel claims filed by public figures.
Actual malice deals with intent. In basic terms, if an individual knowingly publishes or broadcasts a false statement with the intent to harm, then they’re doing it with “actual malice.” If a media outlet or individual distributes material in “good faith” — and the topic is a legitimate matter of public interest — then a judge or jury may rule that the act was not malicious, hence, the actual malice standard would not be met and the defendant would probably get off.
Technically, though, a fair comment defense could still be argued if the standard of actual malice is not a factor in the lawsuit – which would mean the suing party would have to be a “purely private person.” Plus, you’d have to have some very convincing evidence – and an even stronger argument – to use a “fair comment” defense.
The ultimate bottom line: Free speech standards in the U.S. basically render the defense of “fair comment” obsolete.
Fair Comment and Criticism Definition in Canada, England and Wales
While fair comment may not be an oft-used defamation defense in the United States these days, it still plays a role in slander and libel cases in commonwealth countries like Canada, England and Wales.
Under Canadian defamation law, fair comment can only be used as a defense when the issue at hand is a matter of public interest – excluding gossip – based on known and provable facts with no malice. It must also be an opinion capable of being held by any “reasonable” person.
In the UK, fair comment has played a disruptive role in the country’s legal history. In fact, it’s one of the factors that contributed to the current defamation reformations. The reason fair comment is a hot point of contention in the UK is because it’s been broadly interpreted, which, in the past, ultimately led to weaker slander and libel laws.
At the time of this writing, it’s too soon to tell whether or not the newly enacted defamation regulations will have a significant effect on solidifying the legal argument of fair comment in the “Queen’s land.”
In summary, fair comment and criticism is a legal standard usually used in defamation lawsuits. Its purpose is to protect those who voice opinions on matters of civil public interest. While fair comment is not much used anymore as a defense in U.S., slander and libel lawsuits – due to superseding statutes – it’s still very much a part of the legal framework in some Commonwealth countries.