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Supreme Court of Canada Cherneskey v. Armadale Publishers Ltd.<br> Cherneskey v. Armadale Publishers Limited and King [1979] 1 S.C.R. 1067, 24 N.R. 271, 7
C.C.L.T. 69, 90 D.L.R. (3d) 321, 1978 CarswellSask 103, [1978] 6 W.W.R. 618 DATE: November 21, 1978 COUNSEL: D.E. Gauley, Q.C., and P. Foley, for
appellant. R.H. McKercher, Q.C., and N.G.
Gabrielson, for respondents. JUDGES: Laskin C.J.C., Martland, Ritchie, Spence,
Pigeon, Dickson, Beetz, Estey and Pratte J. Defamation --- Fair comment -- Foundation on true facts -- Honest
belief in truth. Defamation -- Defence of fair comment -- Defendants publishing
letter to editor -- No evidence presented as to honest beliefs of authors of
letter -- Defendants not agreeing with opinion stated in letter -- Defence of
fair comment not available and correctly not put before jury. Appeal from the judgment of the Saskatchewan Court of Appeal,
[1977] 5 W.W.R. 155, 2 C.C.L.T. 298, 79 D.L.R. (3d) 180, which held that the
trial judge had erred in not placing the defence of fair comment before the
jury and that it was not up to the defendants to establish an honest belief
before the defence of fair comment could be put, but rather it was up to the
plaintiff to show, in answer to the defence, that the
opinion was not an honest one. The trial judge had held that, as there was no
evidence that the words complained of were anyone's honest opinion, the defence
of fair comment could not be put the jury. The plaintiff, a city alderman, claimed he had
been libelled by a letter written by two law students and published by the
defendants in their newspaper. The law students were not sued, nor were
they called as witnesses, so no evidence as to their honest beliefs was
presented. The defendants' testimony showed that they did not agree with the
opinions stated by the law students, but they argued that they were entitled to
enter the defence of fair comment as they believed the
letter reflected the law students' honest beliefs. Held (Dickson, Spence and Estey JJ. dissenting), the appeal was
allowed and the trial judgment restored. As there was no evidence as to the
honest beliefs of the writers of the letter and as the defendants did not agree
with the opinions in the letter, the defence of fair comment should not
properly be put to the jury. Cases considered: Slim v. Daily Telegraph Ltd., [1968] 2 Q.B. 157, [1968] 1 All E.R.
497 (C.A.) -- distinguished Jones v. Skelton, [1963] 1 W.L.R. 1362, [1963] 3 All E.R. 952
(P.C.) -- considered Turner (Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd., [1950]
W.N. 83, [1950] 1 All E.R. 449 (H.L.) -- considered Plymouth Mut. Co-op. and Indust. Society
v. Traders' Publishing Assn., [1906] 1 K.B. 403 (C.A.)
-- considered White & Co. v. Credit Reform Assn.,
[1905] 1 K.B. 653 (C.A.) -- considered Lyon & Lyon v. Daily Telegraph Ltd., [1943] 1 K.B. 746, [1943]
2 All E.R. 316 (C.A.) -- considered Boland v. Globe and Mail, [1960] S.C.R. 203, 22 D.L.R. (2d) 277 --
considered Egger v. Viscount Chelmsford, [1965] 1 Q.B. 248, [1964] 3 All E.R.
406 (C.A.) -- considered "Truth" (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997
(P.C.) -- applied Arnold v. King-Emperor, [1914] A.C. 644, 83 L.J.P.C. 299 (P.C.) --
applied Ritchie J. (Laskin C.J.C., Pigeon and
Pratte JJ. concurring): 1
This is an appeal brought pursuant to leave granted by the Court of
Appeal of Saskatchewan from a judgment of that court [[1977] 5 W.W.R. 155, 2
C.C.L.T. 298, 79 D.L.R. (3d) 180] setting aside a judgment rendered at trial by
MacPherson J., sitting with a jury, and ordering a new trial of this libel
action, which was brought by the appellant, a practising lawyer and alderman of
the Saskatoon City Council, as a result of a letter published in the
correspondence column of The Star-Phoenix, a newspaper published in Saskatoon, of
which the respondent Armadale Publishers Limited (hereinafter referred to as
"Armadale") is the owner and publisher and the respondent Sterling
King is the editor. 2
The facts giving rise to this litigation are accurately and fully stated
in the dissenting judgment of Brownridge J.A. in the Court of Appeal which is
now conveniently reported (hereinafter referred to as the "report")
at p. 156 et seq., but in order to fully understand the questions to which this
appeal gives rise it will be necessary for me to summarize them briefly. 3
The alleged libel of which the appellant complains is contained in a
letter written to The Star-Phoenix by two law students concerning a petition
which was presented to the Saskatoon City Council and which was apparently
drafted with the assistance of the appellant. The petition presented on behalf
of 54 citizens was directed against the establishment of an Alcoholic
Rehabilitation Centre in what was alleged to be a residential section of
Saskatoon, and the report of its presentation to council as published in The
Star-Phoenix referred in particular to Indians and Metis, whose use of the
centre was alleged to be detrimental to the area. In this regard Mr. Yaworski,
who presented the petition, was reported as saying that the establishment of
the centre was going to turn the area into "an Indian and Metis
ghetto". 4
The only express reference made to the appellant in this report was
contained in the last paragraph, reading: Alderman Morris Cherneskey told Council he did not think the zoning by-laws of the area envisioned 15 people living in one place, and until it is fully clarified it should not operate as an alcoholic rehabilitation centre when the citizens of the neighbourhood are concerned. 5 Having read this article, the two law students proceeded to write a letter to The Star-Phoenix which was published in a column headed "Editor's Letter Box", at the foot of which the following statement was printed: Letter writers are requested to provide addresses and phone numbers to allow checking for authenticity and accuracy. Letters must be signed -- no pseudonyms will be published. All are subject to editing for length, general interest, grammar, style and good taste. Letters under 250 words are preferred. (The italics are mine.) 6 In his charge to the jury, the learned trial judge touched on this phase of the matter, saying: The Star-Phoenix, as the evidence indicates, has a right to decline to publish. They chose to publish and they, as they indicated, have a right to insist upon their right to edit. That's their privilege, naturally. 7 The letter complained of was itself headed "Racist Attitude", and it is reproduced in full at pp. 157-58 of the report, but the real sting of the language complained of is contained in the last three paragraphs, which read: As a law student and an articling law student, we are appalled by the stance adopted by Alderman Cherneskey, himself a lawyer. We appreciate his sympathy with the concerns of certain members of the white community, however, we thoroughly disagree with his contention the centre should cease its operation until such time as the application of the relevant zoning bylaw has been clarified. We feel this situation is not unlike that of a man charged with a criminal offence. Such a man is deemed innocent until proven guilty. That Alderman Cherneskey should imply the onus is upon those operating the centre to establish their right to remain in the neighborhood until further clarification, is abhorrent to all concepts of the law. At the very least, it flies flagrantly in the face of the principles of natural justice. It is unbecom ing a member of the legal profession to adopt such an approach. Although we do not reside in the particular neighborhood in question, we would have no objection whatsoever to such a centre operating in our neighborhood. We entirely support the project initiated by Clarence Trotchie and hope the racist resistance exhibited will be replaced by the support and encouragement which the project deserves. 8 In the course of his reasons for judgment in the Court of Appeal, Brownridge J.A. points out that [p. 159]: Prior to the trial the defendants sought leave to join as third parties the two authors of the offending letter but this application was refused on appeal: ... At the trial it was agreed by counsel that both letter writers were out of the jurisdiction and neither was called as a witness. (The italics are mine.) 9 By his statement of claim the appellant claimed damages for defamation of his personal character in relation to his profession and in his office as an alderman, and by para. 8 made the following general claim: The plaintiff further says that the said heading and letter as a whole would tend to lower the plaintiff in the estimation of right-thinking members of society generally and the citizens of Saskatoon in particular and that the words are defamatory. 10 By their joint defence the defendants pleaded: 8. In so far as the said letter, exclusive of the said heading, set out in paragraph 3 of the Statement of Claim consists of statements of fact they are true in substance and in fact and in so far as the said words consist of expressions of opinion, they are fair and bona fide comment made without malice upon the said facts which are a matter of public interest. 9. The publication of the said letter was an occasion of qualified privilege. 11 The plaintiff's reply is phrased in the following terms: Reply In answer to the Defendant's Statement of Defence wherein they plead fair comment and qualified privilege, which is not admitted but denied, the Plaintiff says that the heading and the letter were published with express malice and joins issue. 12 The questions put to the jury by the learned trial judge and their answers are as follows: 1. Would a reasonably minded reader imply that the words 'racist attitude' in the heading over the letter refer to the plaintiff? Answer: 'No'. 2. If your answer to question number 1 is yes, then are those words defamatory? Answer: 'Not applicable'. 3. Would a reasonably minded reader imply that the words 'racist resistance' in the last sentence of the letter refer to the plaintiff? Answer: 'Yes'. 4. If your answer to number 3 is yes, then are those words defamatory? Answer: 'Yes'. 5. Do the words in the fourth and fifth paragraphs of the letter directly or by innuendo defame the plaintiff as Alderman? Answer: 'Yes'. 6. Do the words in the fourth and fifth paragraphs of the letter directly or by innuendo defame the plaintiff as a lawyer? Answer: 'Yes'. 7. If you have answered yes to questions 2, 4, 5 and 6 or any one or more of them, what damages do you award the plaintiff? Answer: '$25,000 & costs'. 13 I think it convenient at this stage to say that I am in agreement with Brownridge J.A., for the reasons which he has stated at pp. 161-62 of the report, that the defence of qualified privilege is not available to the defendants in the present case. This view was adopted by Bayda J.A., who observed at p. 173: I have read the reasons for judgment of my brother Brownridge, and respectfully agree that for reasons similar to those expressed by the Supreme Court of Canada, in Douglas v. Tucker, [1952] 1 S.C.R. 275, [1952] 1 D.L.R. 657; Boland v. Globe and Mail Ltd., [1960] S.C.R. 203, 22 D.L.R. (2d) 277; and Jones v. Bennett, [1969] S.C.R. 277, 66 W.W.R. 419, 2 D.L.R. (3d) 291, the defence of qualified privilege is not available to the defendants in the present case. I also agree with the conclusions reached by him in respect of the other grounds of appeal, save the ground involving the plea of fair comment. In that regard, I have reached the opposite conclusion, namely, that the learned trial judge should not have taken away from the jury the defence of fair comment. 14 Brownridge J.A. found no merit in "the other grounds of appeal", and Hall J.A. stated at the opening of his reasons for judgment [p. 169]: The significant ground of appeal is that which alleges error by the trial judge in refusing to put to the jury the defence of fair comment. 15 It is thus apparent that all members of the Court of Appeal were concerned only with the complaint that the trial judge had erred in taking the defence of fair comment away from the jury and this was the main issue presented in this court. 16 In the present case the plaintiff's (appellant's) plea that the words used in the letter are defamatory is couched in language which has long been accepted as giving rise, upon publication, to an action for defamation by the person to whom it refers. In this regard I refer to the following excerpt from Gatley on Libel and Slander, 7th ed. (1974), pp. 5-6, para. 4, where he said: Any imputation which may tend 'to lower the plaintiff in the estimation of right-thinking members of society generally' ... or 'to expose him to hatred, contempt or ridicule' is defamatory of him. 17 This language was in large measure adopted by the trial judge in addressing the jury. 18 Accordingly, as I agree with the trial judge that the words used are capable of being construed as tending to lower the plaintiff in the estimation of right-thinking members of society generally, a prima facie cause of action arises, and in my view a plea of fair comment by way of defence does not of itself have the effect of saddling the plaintiff with the burden of proving that the comment was unfair. This plea constitutes a vital part of the case for the defendants and in my view the burden of proving each ingredient of the defence so pleaded should rest upon the party asserting it. One of these ingredients is that the person writing the material complained of must be shown to have had an honest belief in the opinions expressed and it will be seen that, in my view, the same considerations apply to each publisher of that material. 19 The question of burden of proof in such cases was considered by Lord Morris of Borth-y-Gest in Jones v. Skelton, [1963] 1 W.L.R. 1362 at 1379, [1963] 3 All E.R. 952 (P.C.), where he said: ... if a defendant publishes of a plaintiff words which a jury might on the one hand hold to be fact or might on the other hand hold to be comment, and if a plaintiff does not accept that any of the words are true or does not accept that any of them are comment and if a defendant chooses to assert that some of the words are fair comment (made in good faith and without malice) on facts truly stated it must (assuming that the judge rules in regard to the public interest) be for the defendant to prove that which he asserts. If a plaintiff does not acknowledge that there are any words of comment and if the words are reasonably capable of being held by a jury to be statements of fact the plaintiff's overall burden of proving his case does not involve a duty of proving that comment (the existence of which he denies) is unfair. 20 In commenting on this statement, Bayda J.A. observed at p. 178 of the report: It is plain from these remarks (which I adopt as a correct statement of the law) that where the pleadings, as in the present case, disclose that the plaintiff does not acknowledge the words complained of are comments or opinions, but the defendants, in their pleadings, raise the issue of comment and of fairness of the comment, the onus is on the defendants to prove fair comment. The normal principle that he who asserts, must prove, applies. In such event (assuming the words complained of are capable of being a comment and further assuming that condition (b) mentioned above is not applicable as is the situation here), it is for the judge to determine, as a matter of law, (1) whether there is any evidence of condition (a), that is, any evidence entitling the jury to find that the statements upon which the comments are based are true; and (2) whether there is any evidence of condition (c), viz., the requirement of honesty. If he finds there is some evidence to support the finding that those conditions are met, he must place the defence of fair comment before the jury for their consideration (assuming that he has previously ruled that the element of public interest was proved). If, on the other hand, the trial judge finds, as a matter of law, that there is no evidence to support the presence of either of these two conditions, he should not put the defence of fair comment to the jury. 21 In cases where the essential ingredients of either the plea of "qualified privilege" or that of "fair comment" have been established by the defence, then if it can be proved that the statements complained of were made or written maliciously the plea must fail; but in my view no burden lies upon the complainant to prove malice unless and until either plea has been shown to be supported by the evidence. 22 Here the plea of "express malice" was added midway through the evidence called on behalf of the plaintiff (appellant) and it is, in my view, important to appreciate that this allegation forms no part of the main case but is inserted entirely by way of answer to the respondents' claim of "qualified privilege" and "fair comment". As I have indicated, the defence of qualified privilege is not available to the defendants, and the question of malice could only arise in the present case if there were some evidence to indicate that the comment complained of was otherwise fair, and this cannot be said unless the opinions expressed are honestly held. 23 As I have already observed, it is an essential ingredient to the defence of fair comment that it must be the honest expression of the writer's opinion and in this regard I refer to the following statement made by Lord Porter in Turner (Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd., [1950] W.N. 83, [1950] 1 All E.R. 449 at 462-63 (H.L.), where he said, commenting on the charge to the jury in that case where the defence was qualified privilege: Its early words on this part of the case express exactly what the authorities convey. 'Fair comment' (in effect the learned judge says) 'has to be an honest expression of the real opinion of the defendants when they wrote it...' 'Did they honestly and really think that she' (the appellant) 'was completely out of touch with the tastes and entertainment requirements of the picture-going millions who are also radio listeners and that her criticisms are on the whole unnecessarily harmful to the film industry? Did they honestly hold that opinion and really believe it? If they did -- then they were not abusing the occasion.' Such a direction is, I think, entirely accurate and could not be attacked, and similar language is to be found in other parts of the summing-up. On the other hand, language of this kind is frequently interspersed with words which suggest that the criterion is whether fair-minded men could hold that view. Let me take one example only. It runs: First of all ... do you think that a fair-minded man capable of impartial judgment of the plaintiff's (appellant's) talks ... could come to that conclusion. Was there anything in them or in her conduct which would lead a fair man honestly to entertain the opinion that the defendants expressed in this letter? Similar observations appear throughout the summing-up and, undoubtedly, if they were found alone there would have been clear misdirection. It is said, however, in the first place, that, in his cross-examination and address, leading counsel for the respondents used the phrase and accepted the burden that fair-mindedness was required. I do not think that the record justifies this allegation, but if it did I should think it immaterial. Secondly, it is argued with more force that, when the summing-up is regarded as a whole, a jury would not be misled, but would rightly apprehend that honesty, not reasonableness, was the state of mind required. My Lords, I cannot take this view. I have read the summing-up as a whole more than once and I think a jury might well have come to the conclusion that both honesty and reasonableness were necessary and that the defendants were unreasonable and therefore malicious. It is, I think, difficult for the uninstructed mind to guard against such a misconception, and to my mind the clearest direction is necessary to the effect that irrationality, stupidity or obstinacy do not constitute malice, though in an extreme case they may be some evidence of it. The defendant, indeed, must honestly hold the opinion he expresses but no more is required of him. 24 In the same case Lord Oaksey stated at p. 475: In the absence of any evidence that the respondents did not honestly hold the opinions expressed in their letter, I see no grounds on which they could be held to have exceeded the limits of fair comment. 25 After having heard lengthy argument as to whether or not this defence should be left to the jury in the present case, the trial judge made the following ruling: I shall not try to decide whether if the opinion of the writers of the letter is honest and sincere that this fact absolves the publisher or the editor of the paper from a similar opinion. In the present trial that is not necessary because here there is no evidence that the offending words, if they are in fact defamatory of the plaintiff, which is a matter for the jury -- there is no evidence that those words express the honest opinion of anyone, either the writers of the letter or of anyone on the editorial staff of The Star-Phoenix or its publisher. The evidence seems to be that the defendants had a contrary opinion or none at all. Without such honest opinion I cannot tell the jury that the defence of fair comment is available to the defendant. 26 Honesty of belief has been characterized by Lord Denning M.R. in Slim v. Daily Telegraph Ltd., [1968] 2 Q.B. 157, [1968] 1 All E.R. 497 at 503 (C.A.), as "the cardinal test" of the defence of fair comment, and in the context of the present case this must mean honesty of belief in the opinions expressed in the letter complained of. 27 It has long been established that the state of mind of the publisher of the alleged libel is directly in issue where there is a plea of fair comment. This is illustrated in the case of Plymouth Mut. Co-op. and Indust. Society v. Traders' Publishing Assn., [1906] 1 K.B. 403 (C.A.), where the question was whether an interrogatory addressed to the state of mind of the defendant, who had pleaded fair comment, was admissible, and, after referring to the case of White & Co. v. Credit Reform Assn., [1905] 1 K.B. 653 (C.A.), Vaughan Williams L.J. said, at pp. 413-14: It seems to me that that case shews that an interrogatory of this kind is just as relevant and admissible in a case where the defence is fair comment as in one where it is privilege. In either case the question raised is really as to the state of mind of the defendant when he published the alleged libel, the question being in the one case whether he published it in the spirit of malice, in the other whether he published it in the spirit of unfairness. In either case, I think such an interrogatory as the one now in question is admissible. 28 And later at p. 418 of the same report, Fletcher-Moulton L.J. said: ... I am clear that, both in cases in which the defence of privilege and in those in which the defence of fair comment is set up, the state of mind of the defendant when he published the alleged libel is a matter directly in issue. 29 Perhaps the most singular feature of the present case is that the state of mind of the defendants is established by their own evidence to the effect that they did not honestly hold the opinions expressed in the letter. This is illustrated by the following excerpt from the evidence of the defendants in relation to the comments complained of. Mr. R. Struthers, who was the executive vice-president of the defendant Armadale, stated in the course of cross-examination as follows: Q. But of course there is no question but what you do not believe Morris Cherneskey to be a racist? A. No, I do not. Q. You do not believe Morris Cherneskey to be a person with a racist attitude? A. I do not believe him to be so. Q. And in any capacity, as a lawyer, you don't believe him to be a lawyer with a racist attitude? A. No. Q. Or an alderman with a racist attitude? A. No. 30 The same witness had given the same answers when speaking as the officer examined for discovery on behalf of the defendant Armadale. 31 The second defendant, Sterling King, who was the editor of The star-Phoenix, stated that he had no opinion as to the approach of Cherneskey in relation to the white community in the area in question but that it was his honest opinion that Cherneskey had a reputation for honesty and integrity as a lawyer and an alderman. 32 It will be remembered that Bayda J.A. adopted the passage from the reasons for judgment of Lord Morris of Borth-y-Gest in Jones v. Skelton, which I have already quoted, and the reasons for judgment of both Brownridge and Bayda JJ.A. satisfy me that, if the writers of the letter here in question had been the defendants in this action and had entered a plea of fair comment, both these judges would have found that the burden of proving honest belief in the opinions expressed rested upon the defence. 33 Bayda J.A., however, allowed this appeal on the ground that a newspaper, in republishing defamatory opinions which do not reflect its honest opinion, is nevertheless entitled to rely on the defence of fair comment on the ground that it honestly believed that those who wrote the letter were honestly expressing their true views. In this regard reliance is placed on the case of Lyon & Lyon v. Daily Telegraph Ltd., [1943] 1 K.B. 746, [1943] 2 All E.R. 316 (C.A.). In that case the author, who had used a nom de plume and given a fictitious address, was never discovered and the newspaper therefore had no means of determining whether the views expressed were honestly held by the writer or not, but the defence of fair comment was upheld in the Court of Appeal where Scott L.J. said, at p. 318: There is no question but that the comment contained in the letter represented the honest opinion of the 'Daily Telegraph'; and at the trial no doubt was cast upon the complete belief of the newspaper that they were publishing a letter in which the writer was making a fair comment on a matter of public interest. 34 The obvious distinction between that case and the present one is that the letter complained of here did not express the honest opinion of The Star-Phoenix, and there is no evidence that the views therein expressed were honestly held by the writers, but Scott L.J., later in the same judgment, said at p. 319: Although there is no direct authority, I think that the question of law is really implicit in the well-established rule that the publishers of a newspaper, when defendants in an action for libel, cannot, on the issue of fair comment, be required to disclose the source of their information. If the innocent state of mind of the writer of a letter published in the newspaper was a relevant fact, which had to be proved by him before his plea of fair comment could be established, it would go far towards justifying counsel's argument; but the very existence of the exceptional rule about interrogatories and discovery in the case of newspaper defendants seems to me to presuppose a rule of law that, at least in the absence of special circumstances (on the possibility of which I express no opinion), there is no such presumption or onus, and that fairness of the comment contained in the newspaper's correspondence columns must be judged by its tenor, subject only to the proviso that the statements of fact upon which the comment is based are not untrue. 35 This latter passage
is primarily concerned with the rule that the publishers of a newspaper cannot
be required to disclose their source of information, but the language employed
in the last sentence might be construed as meaning that the fairness of the
letter complained of is to be judged by its tenor, which I construe as a
suggestion that the language used in correspondence columns of a newspaper is
to be judged according to whether there is anything in the letter in question
which would lead a fair man honestly to share the opinion which the language
conveyed. It is to be remembered that the judgment of the Court of Appeal in
the Lyon case was rendered some seven years before the House of Lords decided
the case of Turner, supra, and I do not think there is anything in the views
expressed by Scott L.J. which can be taken as fixing any standard except
honesty as the touchstone of the defence of fair comment. It is to be noted
also that Scott L.J. limited his opinion to cases where there was "an
absence of special circumstances" as to which he expressed no opinion. The
opinion expressed, therefore, cannot be treated as including the special
circumstances of the publisher and editor of the newspaper having stated
affirmatively that the letter does not express their honest opinion. 36
Bayda J.A., however, expressed the following
opinion [p. 179]: Where, however, the defendant is a publisher of the impugned words
and in particular is a newspaper which publishes in
its letters-to-editor column a letter capable of being defamatory, what is the
acceptable standard? It is indisputable that if such a newspaper honestly holds
the opinions expressed in the impugned writing and was not actuated by malice,
then as in the case of the writer, condition (c) (honesty) would be satisfied
(Slim v. Daily Telegraph Ltd., supra; Lyon & Lyon v. Daily Telegraph Ltd.
[supra]. But is a different (I hesitate to say 'lower') standard acceptable?
Suppose the newspaper cannot be said to hold the opinions expressed in the
impugned writing but honestly believes that they represent the real opinions of
the writer (in other words, an honest belief that they were publishing a letter
in which the writer was making a fair comment upon a matter of public interest)
and, in addition, is not actuated by malice in publishing the letter -- is that
an acceptable state of mind for a plea of fair comment to succeed? I have concluded
that it is. 37
This conclusion, which lies at the very heart of this case, is based on
an obiter dictum of Lord Denning M.R. in the case of Slim v. Daily Telegraph
Ltd., supra, where, as in the Lyon case, it was found that the newspaper honestly
held the views expressed, and Lord Denning M.R. observed at p. 503: ... the right fair comment is one of the
essential elements which go to make up our freedom of speech. We must ever
maintain this right intact. It must not be whittled down by legal refinements.
When a citizen is troubled by things going wrong, he
should be free to 'write to the newspaper': and the newspaper should be free to
publish his letter. It is often the only way to get things put right. The
matter must, of course, be one of public interest. The writer must get his
facts right: and he must honestly state his real opinion. But that being done,
both he and the newspaper should be clear of any liability. They should not be
deterred by fear of libel actions. 38
In the penultimate paragraph of the same judgment, Lord Denning M.R.
stated: On the face
of these letters, I think that the comments made by Mr. Herbert and the Daily
Telegraph were fair comments on a matter of public interest. They honestly said
what they thought. (The italics are mine.) 39
It must be apparent, as it seems to me, that the sentence last above
quoted refers to the honesty of both the writer and the newspaper, so that this
case, in my opinion, affords no authority for the proposition that comments
published in a newspaper need not be honest expressions of the newspaper's
opinion in order to support a defence of fair comment so long as the newsaper
can show its belief that the comments were an honest expression of the real
opinion of the writer. 40 If
the publication of the libel had been confined to the letter and the writers
had been sued or, alternately, if it had originated with the newspaper and its
publisher, it would in either case have been necessary to show honest belief in
order to sustain the defence of fair comment. The same considerations would
thus in my opinion apply to the newspaper and the writers. 41
In my opinion each publisher in relying on the defence of fair comment
is in exactly the same position as the original writer. In this latter regard,
I refer to the opinion delivered by Lord Denning in the Privy Council in
"Truth" (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997, where a
newspaper published an article calling for an inquiry concerning import
licences, in which it stated that a Mr. Judd had told a man who was inquiring
about import licences to "see Phil and Phil would fix it". The
newspaper's comment on this was: "By Phil his caller understood him to
mean the Honourable Philip North Holloway, the Minister of Industry and Commerce."
Holloway brought an action for libel against the newspaper, and, in commenting
on the trial judge's charge to the jury, Lord Denning
had this to say at pp. 1002-1003: The words actually used by the judge to the jury were these: 'If
you accept that those words were spoken by Judd, it is not a defence at all
that a statement that might be defamatory is put forward by way of report only.
It does not help the defendant that the way that it is put is that Judd said "See Phil and Phil would fix it." The case is
properly to be dealt with as if the defendant itself said
"See Phil and Phil would fix it."' Their Lordships see nothing wrong in this direction. It is nothing
more nor less than a statement of settled law put
cogently to the jury. Gatley opens his chapter on Republication and Repetition
with the quotation: 'Every publication of a libel is a new libel, and each
publisher is answerable for his act to the same extent as if the calumny
originated with him,' see Gatley on Libel and Slander, 4th ed., p. 106. This
case is a good instance of the justice of this rule. If Judd did use the words
attributed to him, it might be a slander by Judd of Mr. Holloway in the way of
his office as a Minister of the Crown. But if the words had
not been repeated by the newspaper, the damage done by Judd would be as
nothing compared to the damage done by this newspaper when it repeated it. It
broadcast the statement to the people at large: and it made it worse by making
it one of the grounds on which it called for an inquiry, for thereby it
suggested that some credence was to be given to it. 42
It appears to me to follow from this that where, as here, there is no
evidence as to the honest belief of the writers of the letter and the newspaper
and its publisher have disavowed any such belief on their part, the defence of
fair comment cannot be sustained. 43
In this regard the language employed by Lord Shaw in Arnold v.
King-Emperor, [1914] A.C. 644, 83 L.J.P.C. 299 at 300 (P.C.), is appropriate.
He there said: Their
Lordships regret to find that there appeared on the one side of this case the time-worn fallacy that some kind of privilege attaches to
the profession of the Press as distinguished from the members of the public.
The freedom of the journalist is an ordinary part of the freedom of the
subject, and to whatever lengths the subject in general may go, so also may the
journalist, but, apart from statute law, his privilege is no other and no
higher. The responsibilities which attach to his power in the dissemination of
printed matter may, and in the case of a conscientious journalist do, make him
more careful; but the range of his assertions, his criticisms, or his comments
is as wide as, and no wider than, that of any other subject. No privilege
attaches to his position. 44
These views were adopted in this court in Boland v. Globe and Mail,
supra, at p. 208. 45
These authorities satisfy me that the newspaper and its editor cannot
sustain a defence of fair comment when it has been proved that the words used
in the letter are not an honest expression of their opinion and there is no
evidence as to the honest belief of the writers. In view of this finding, I do
not consider it necessary to deal with the other submissions made on behalf of
the appellant. 46
I cannot leave this question without reference to the reasons for
judgment of Hall J.A. wherein he expressed the view -- which was not shared by
the two other judges sitting in the appeal -- that, where the defence of fair
comment is pleaded the burden of disproving "honesty of belief" lies
upon the plaintiff. In so deciding Hall J.A. equated lack of "honest
belief" with "malice", saying at p. 170 of the report: It is apparent that saying that there must be an honest belief is
the same as saying that the comment cannot be made maliciously. We are,
therefore, in the instant case really dealing with the reply of malice. 47
This statement appears to me to overlook the distinction between the
defence of "privilege", which can only be defeated by proof of
malice, and the defence of "fair comment", which presupposes honest
belief on the part of the author or publisher. This distinction is recognized
in the case of Plymouth Mut. Co-op. and Indust.
Society v. Traders' Publishing Assn., supra. Speaking
of the different considerations affecting the defence of "privilege"
on the one hand and "fair comment" on the other, Vaughan Williams
L.J. said at pp. 413-14: In either
case the question raised is really as to the state of mind of the defendant
when he published the alleged libel, the question being in the one case whether
he published it in the spirit of malice, in the other whether he published it
in the spirit of unfairness. (The italics are mine.) 48
As honesty of belief is an essential component of the defence of fair
comment, that defence involves at least some evidence that the material
complained of was published in a spirit of fairness. 49
I cannot accept the proposition apparently adopted by Hall J.A. that
where, as here, the words are capable of a defamatory meaning they are presumed
to give expression to an opinion honestly held until the contrary is shown. 50
Hall J.A. appears to find some support for his views in the decision of
Lord Denning M.R. in Egger v. Viscount Chelmsford, [1965] 1 Q.B. 248 at 265,
[1964] 3 All E.R. 406 (C.A.), from which I extract the following excerpt: If the
plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence
of qualified privilege, or to cause a comment, otherwise fair, to become unfair,
then he must prove malice. 51
I read this statement as meaning that, where the defendant has shown
that the comment is "otherwise fair", the burden rests upon the
plaintiff to prove malice. Here, as I have said, the defence of "qualified
privilege" is not available to the defendants and the defence of fair
comment can only be sustained if the comment made is "otherwise
fair". 52
In the present case, as I have said, there is no allegation of malice in
the statement of claim, but, if there had been any evidence to sustain a plea
of fair comment, it would have been for the jury to say whether malice had been
established. 53
On the pleadings here it was for the judge to determine whether the
words used were capable of a defamatory meaning and for the jury to decide
whether they were in fact defamatory. The question of whether they constituted
fair comment would also be for the jury if there were any evidence whatever to
support it; but in the absence of such evidence and in face of the defendants'
evidence as to lack of honest belief, no question of malice arises. 54
It will have been seen, however, that, in the absence of any proof of
the honest belief of the writers and having regard to the denial of honest
belief by the defendants themselves, the defence of fair comment cannot, in my
view, prevail. 55
This does not mean that freedom of the press to publish its views is in
any way affected, nor does it mean that a newspaper cannot publish letters
expressing views with which it may strongly disagree. Moreover, nothing that is
here said should be construed as meaning that a newspaper is in any way
restricted in publishing two diametrically opposite views of the opinion and
conduct of a public figure. On the contrary, I adopt as descriptive of the
conclusion which I have reached, the language used by Brownridge J.A. in the
following excerpt from his reasons for judgment in the Court of Appeal, where
he said at p. 167 of the report: What it does
mean is that a newspaper cannot publish a libellous letter and then disclaim
any responsibility by saying that it was published as fair comment on a matter
of public interest but it does not represent the honest opinion of the
newspaper. 56
For all these reasons I would allow this appeal and restore the judgment
at trial. The appellant is entitled to his costs throughout. Martland J. (Laskin C.J.C. and Beetz J. concurring): 57
The facts which give rise to the present appeal
are stated in the reasons of my brothers Ritchie and Dickson. I agree with the
disposition of the appeal proposed by the former. I wish to comment on one of
the grounds which he adopts for allowing the appeal
which I consider to be sufficient to dispose of the matter. 58
The issue before this court is as to whether the judge at trial erred in
taking away from the jury the defence of fair comment. Before doing so, the
trial judge discussed the matter with counsel and stated his reasons for taking
this course. They are as follows, and I agree with them: It is, of course, the burden of the defendant to prove this
defence and it does not arise until after the jury has found the words
complained of to apply to the plaintiff and that they are defamatory of him. I shall not try to decide whether if the opinion of the writers of
the letter is honest and sincere that this fact absolves the publisher or the
editor of the paper from a similar opinion. In the present trial that is not
necessary because here there is no evidence that the offending words, if they
are in fact defamatory of the plaintiff, which is a matter for the jury --
there is no evidence that those words express the honest opinion of anyone,
either the writers of the letter or of anyone on the editorial staff of The
Star-Phoenix or its publisher. The evidence seems to be that the defendants had
a contrary opinion or none at all. Without such honest opinion I cannot tell
the jury that the defence of fair comment is available to the defendants. I thought I had better put that on the record, gentlemen, so that my
position is clear and the reason for my ruling is clear. 59
The reason for the existence of the defence of fair comment in a suit
for defamation and the nature of that defence are stated in Salmond on Torts,
17th ed. (1977), p. 180, as follows: A fair
comment on a matter which is of public interest or is
submitted to public criticism is not actionable. This right is one of the
aspects of the fundamental principle of freedom of expression, and the courts
are zealous to preserve it unimpaired. 'It must not be whittled down by legal
refinements.' The jury are the guardians of the freedom of public comment as
well as of private character. It is only on the strongest grounds that a court
will set aside a verdict for a defendant when fair comment is pleaded. Comment or
criticism must be carefully distinguished from a statement of fact. The former
is not actionable if it relates to a matter which is
of public interest; the latter is actionable, even though the facts so stated
would, if true, have possessed the greatest public interest and importance.
Comment or criticism is essentially a statement of opinion as to the estimate
to be formed of a man's writings or actions. Being therefore a mere matter of
opinion, and so incapable of definite proof, he who expresses it is not called
upon by the law to justify it as being true, but is allowed to express it, even
though others disagree with it, provided that it is honest. 60
Freedom to express an opinion on a matter of public interest is
protected, but such protection is afforded only when the opinion represents the
honest expression of the view of the person who expresses it. This requirement
is stated in the passage quoted above. Gatley on Libel and
Slander, 7th ed. (1974), p. 308, para. 729, says: Comment must
be published honestly in that it is the expression of the defendant's real
opinion. 61
A clear statement of the nature of the defence of fair comment is found
in the summing up to the jury of Diplock J. (as he then was) in the case of
Silkin v. Beaverbrook Newspapers Ltd., [1958] 1 W.L.R. 743 at 747, [1958] 2 All
E.R. 516: I have been
referring, and counsel in their speeches to you have been referring, to fair
comment, because that is the technical name which is given to this defence, or,
as I should prefer to say, which is given to the right of every citizen to
comment on matters of public interest. But the expression 'fair comment' is a
little misleading. I may give you the impression that you, the jury, have to
decide whether you agree with the comment, whether you think it is fair. If
that were the question you had to decide, you realize that the limits of freedom which the law allows would be greatly curtailed.
People are entitled to hold and to express freely on matters of public interest
strong views, views which some of you, or indeed all of you, may think are
exaggerated, obstinate or prejudiced, provided -- and this is the important
thing -- that they are views which they honestly hold. The basis of our public
life is that the crank, the enthusiast, may say what he honestly thinks just as
much as the reasonable man or woman who sits on a jury, and it would be a sad
day for freedom of speech in this country if a jury were to apply the test of
whether it agrees with the comment instead of applying the true test: was this
an opinion, however exaggerated, obstinate or prejudiced, which was honestly
held by the writer? 62
My brother Ritchie has referred to other authorities
which are to the same effect, namely, that a defence of fair comment is
dependent upon the fact that the words in issue represent an honest expression
of the real view of the person making the comment. 63
In the present case, the corporate defendant is the owner and publisher
of The Star-Phoenix, a Saskatoon newspaper in which the words complained of
were published, and the respon dent King is the editor of that newspaper. The
evidence of the officer produced for examination for discovery by the
respondent company and that of the respondent King make it clear that the
letter complained of did not represent the honest expression of their real
views. 64
The writers of the letter were not called to give evidence and so there
is no evidence to prove that the letter was an honest expression of their
views. The only evidence we have is that the respondent King said, with
reference to the writers of the letter, "we figured that was their opinion
or their view or their observations". 65
This is not a sufficient basis to enable the respondents to rely upon
the defence of fair comment. There is no evidence to show that the material
published, which the jury found to be defamatory, represented the honest
opinion of the writers of the letter, or that of the officers of the newspaper which published it. In these circumstances the
trial judge was properly entitled to decide not to put the defence of fair
comment to the jury. Dickson J. (Spence and Estey JJ. concurring) (dissenting): 66
This case involves a letter written to the editor of the Saskatoon
Star-Phoenix by two law students. They were concerned with an issue of public
interest and importance which had evoked substantial
controversy in the city of Saskatoon, namely, whether an Indian and Metis
rehabilitation centre for alcoholics would be permitted in a predominantly
white neighbourhood. The letter was published in The Star-Phoenix. The
appellant, Morris T. Cherneskey, who is an alderman and a practising lawyer in
Saskatoon, alleges that the tenor of the letter was such as to charge him with
being "racist" and with conduct unbecoming a barrister and solicitor.
He brought an action for libel against Armadale Publishers Limited, owner and
publisher of The Star-Phoenix, and Sterling King, editor of the paper. The
writers of the letter were not sued, nor did they appear as witnesses, as both
were out of the province at the time of trial. I 67
At a meeting of the Saskatoon City Council held on 5th March 1973, Mr.
Cherneskey inquired whether the city had given permission for a native
alcoholic rehabilitation centre which was in operation
at 401 Avenue H. South, and whether there were any zoning ramifications. He
also asked whether the opinion of adjoining residents had been sought. Mr. Cherneskey had earlier been consulted by a Mr. Yaworski
and other residents opposed to the centre. He had advised them to present a
petition to city council and told them how to draft it. 68
At a meeting of the city council held on 12th March 1973, Mr. Yaworski
appeared with a petition containing signatures of 54 persons antagonistic to
the centre. He spoke vehemently against it. He warned that the area would turn
into "an Indian and Metis ghetto", and he questioned whether 15
people could be asked to "sit inside a hot old house in the summer."
Mr. Cherneskey told council he did not think the zoning by-laws of the area
envisaged 15 people living in one residence. He suggested that the centre
should not operate until the zoning situation had been clarified. 69
The Star-Phoenix carried a full and accurate report of the meeting in
its news columns. Following this, the two law students, Jackie Dorgan and
Connie Hunt, wrote a letter to the paper, reading: Having read the article in the Star-Phoenix of March 13,
concerning a petition by Saskatoon residents against the continuation of the
Alcoholic Rehabilitation Centre, we wish to express our shock and disgust at
the racist attitude reported in the article. We had thought optimistically we were developing beyond the point
where our image of native people was dominated by ill-conceived and
dehumanizing stereotypes. Mr. Yaworski's remarks indicate he still considers
native people to be something less than human and not entitled to the citizens'
rights to which we continually pay lip service. Surely the white community has indulged itself sufficiently in
complaints and criticisms of native people and their drinking habits. Now our
energies should be directed in support and encouragement of the efforts of
native people who recognize the problem and are taking concrete and positive
steps to alleviate it. As a law student and an articling law student, we are appalled by
the stance adopted by Alderman Cherneskey, himself a lawyer. We appreciate his
sympathy with the concerns of certain members of the white community; however,
we thoroughly disagree with his contention the centre should cease its
operation until such time as the application of the relevant zoning bylaw has
been clarified. We feel this situa tion is not unlike that of a man charged
with a criminal offence. Such a man is deemed innocent until proven guilty. That Alderman Cherneskey should imply the onus is upon those
operating the centre to establish their right to remain in the neighbourhood
until further clarification, is abhorrent to all
concepts of the law. At very lease, it flies flagrantly in the face of the
principles of natural justice. It is unbecoming a member of the legal
profession to adopt such an approach. Although we do not reside in the particular neighbourhood in
question, we would have no objection whatsoever to such a centre operating in
our neighbourhood. We entirely support the project initiated by Clarence
Trotchie, and hope the racist resistance exhibited will be replaced by the
support and encouragement which the project deserves. 70
The letter was published under the caption "Racist Attitude"
in that portion of the paper entitled "Forum", in which letters to
the editor appeared. 71
The action came on for trial before MacPherson J. and a jury. The
questions put to the jury and the answers given by the jury were as follows: 1. Would a reasonably minded reader imply that the words 'racist
attitude' in the heading over the letter refer to the plaintiff? Answer: 'No'. 2. If your answer to question number 1 is yes, then are those
words defamatory? Answer: 'Not applicable'. 3. Would a reasonably minded reader imply that the words 'racist
resistance' in the last sentence of the letter refer to the plaintiff? Answer:
'Yes'. 4. If your answer to number 3 is yes, then are those words
defamatory? Answer: 'Yes'. 5. Do the words in the fourth and fifth paragraphs of the letter
directly or by innuendo defame the plaintiff as Alderman? Answer: 'Yes'. 6. Do the words in the fourth and fifth paragraphs of the letter
directly or by innuendo defame the plaintiff as a lawyer? Answer: 'Yes'. 7. If you have answered yes to questions 2, 4, 5 and 6 or any one
or more of them, what damages do you award the plaintiff? Answer: '$25,000.
& costs'. 72
Judgment was entered in favour of Mr. Cherneskey for $25,000 and costs.
On appeal, the principal ground taken was that the trial judge had erred in
refusing to put to the jury the defence of fair comment, which had been pleaded
in these terms in the statement of defence: 8. In so far as the said letter, exclusive of the said heading,
set out in paragraph 3 of the statement of claim consists of statements of fact
they are true in substance and in fact and in so far as the said words consist
of expressions of opinion, they are fair and bona fide comment made without malice
upon the said facts which are a matter of public interest. 73
The trial judge took the defence of fair comment away from the jury on
the ground there was no evidence that the words complained of expressed the
honest opinion of anyone, either the writers of the letter, or any member of
the editorial staff of the paper or its publisher. The judge was of the view
that without such honest opinion he could not tell the jury that the defence of
fair comment was available to the defendants. The Court of Appeal for
Saskatchewan by a majority (Hall and Bayda JJ.A.) allowed the appeal and
ordered a new trial [[1977] 5 W.W.R. 155, 2 C.C.L.T. 298, 79 D.L.R. (3d) 180].
Brownridge J.A., dissenting, would have dismissed the
appeal. II 74
The law of defamation must strike a fair balance between the protection
of reputation and the protection of free speech, for it asserts that a
statement is not actionable, in spite of the fact that it is defamatory, if it
constitutes the truth, or is privileged or is fair comment on a matter of
public interest expressed without malice by the publisher. These defences are
of crucial importance in the law of defamation because of the low level of the threshold which a statement must pass in order to be
defamatory. The virtually universally accepted test is that expressed by Lord
Atkin "after collating the opinions of many authorities" in Sim v.
Stretch, 52 T.L.R. 669 at 671, [1936] 2 All E.R. 1237 (H.L.). He stated that
the test of whether a statement is defamatory is: "would the words tend to
lower the plaintiff in the estimation of right-thinking members of society
generally?" In the earlier case of O'Brien v. Clement (1846), 15 M. &
W. 435 at 437, 153 E.R. 920, Parke B. said that, subject to any available
defences, "[e]verything printed or written, which
reflects on the character of another" is a libel. It is apparent that the
scope of defamatory statements is very wide indeed. In particular, a great deal
of what is printed in the letters to the editor columns of newspapers unquestionably
has the effect of lowering the subject's reputation in the estimation of
right-thinking people generally. In all cases, nevertheless, the statement is
not actionable if it is the truth, or fair comment or protected by privilege.
This is the reason why most defamation actions centre on the defences of
justification, fair comment and privilege. It is these defences
which give substance to the principle of freedom of speech. 75
The important issue raised in this appeal is whether the defence of fair
comment is denied a newspaper publishing material alleged to be defamatory
unless it can be shown that the paper honestly believed the views expressed in
the impugned material. It does not require any great perception to envisage the
effect of such a rule upon the position of a newspaper in the publication of
letters to the editor. An editor receiving a letter containing matter which might be defamatory would have a defence of
fair comment if he shared the views expressed, but be defenceless if he did not
hold those views. As the columns devoted to letters to the editor are intended
to stimulate uninhibited debate on every public issue, the editor's task would
be an unenviable one if he were limited to publishing only those letters with
which he agreed. He would be engaged in a sort of censorship, antithetical to a
free press. One can readily draw a distinction between editorial comment or articles, which may be taken to represent the paper's
point of view, and letters to the editor in which the personal opinion of the
paper is or should be irrelevant. No one believes that a newspaper shares the
views of every hostile reader who takes it to task in a letter to the editor
for error of omission or commission, or that it yields assent to the views of
every person who feels impelled to make his feelings known in a letter to the
editor. Newspapers do not adopt as their own the
opinions voiced in such letters, nor should they be expected to. III 76
The issue is broader than that. A free and general discussion of public
matters is fundamental to a democratic society. The right of persons to make
public their thoughts on the conduct of public officials, in terms usually
critical and often caustic, goes back to earliest times in Greece and Rome. The
Roman historian, Tacitus, spoke of the happiness of the times when one could
think as he wished and could speak as he thought (1 Tacitus, History, para. 1).
Citizens, as decisionmakers, cannot be expected to exercise wise and informed
judgment unless they are exposed to the widest variety of ideas from diverse
and antagonistic sources. Full disclosure exposes and protects against false
doctrine. 77
It is not only the right but the duty of the
press, in pursuit of its legitimate objectives, to act as a sounding board for
the free flow of new and different ideas. It is one of the few means of getting
the heterodox and controversial before the public. Many of the unorthodox
points of view get newspaper space through letters to the editor. It is one of
the few ways in which the public gains access to the press. By
these means various points of view, old and new grievances and proposed
remedies get aired. The public interest is incidentally served by
providing a safety valve for people. 78
Newspapers will not be able to provide a forum for dissemination of
ideas if they are limited to publishing opinions with which they agree. If
editors are faced with the choice of publishing only those letters which
espouse their own particular ideology or being without defence if sued for
defamation, democratic dialogue will be stifled. Healthy debate will likely be
replaced by monotonous repetition of majoritarian ideas and conformity to
accepted taste. In one-newspaper towns, of which there are many, competing
ideas will no longer gain access. Readers will be exposed to a single
political, economic and social point of view. In a public controversy, the
tendency will be to suppress those letters with which the editor is not in
agreement. This runs directly counter to the increasing
tendency of North American newspapers generally to become less devoted to the
publishers' opinions and to print, without fear or favour, the widest possible
range of opinions on matters of public interest. The integrity of a newspaper
rests not on the publication of letters with which it is in agreement, but
rather on the publication of letters expressing ideas to which it is violently
opposed. 79
I do not wish to overstate the case. It is my view, however, that
anything which serves to repress competing ideas is inimical to the public
interest. I agree that the publisher of a newspaper has no special immunity
from the application of general laws and that in the matter of comment he is in
no better position than any other citizen. But he should not be in any worse
position. That, I fear, will be the situation if one fails to distinguish
between the writer of a letter to the editor and the editor, or if one
compresses into one statement the several steps in the requisite process of
analysis of the defence of fair comment. 80
Here, the newspaper, as such, had no opinion on the matter published.
Although the executive vice-president of Armadale and the editor happened to
know the appellant and did not share the opinion expressed by the writers of
the letter in question, the newspaper, in fact, operated merely as a conduit
for the opinion. 81
Another important fact should also be noted. MacPherson J., speaking
with reference to the newspaper, said "malice is
out". Counsel acknowledged that was right, and
the judge's ruling was not challenged before us. IV 82
There is in some of the cases confusion between the requirement that a
comment be "fair" and that it not be made
with malice. In fact, these two requirements are quite distinct. Shortly stated,
the test of whether a comment is "fair comment" in law is an
"objective" test, i.e., is the comment one that an honest, albeit
prejudiced, person might make in the circumstances? The cases of Merivale v.
Carson (1887), 20 Q.B.D. 275 (C.A.); Lyon & Lyon v. Daily Telegraph Ltd.,
[1943] 1 K.B. 746, [1943] 2 All E.R. 316 (C.A.); and Slim v. Daily Telegraph
Ltd., [1968] 2 Q.B. 157, [1968] 1 All E.R. 497 (C.A.), in my opinion, support
this view. Even if the comment passes this test, the defence of fair comment
will fail if it does not pass the subjective test of whether the publisher
himself was actuated by malice: see Thomas v. Bradbury, Agnew & Co., [1906]
2 K.B. 627, 75 L.J.K.B. 726 (C.A.). There would be no point in having the
second test if the first one included the ingredient of the subjective test.
Many cases merge these two elements to ask whether the statement in question is
the publisher's real opinion. This works passably well when the defendant is
the writer, but it does not work at all if he is not, as in the case where, as
here, a newspaper has printed a letter in its letters to the editor space. 83
In my view, the legal position is this: If a defendant raises the
defence of fair comment, he has the burden of establishing that the facts on which
it is based are true and that it is objectively fair; if he discharges this
burden he will, nevertheless, lose the defence if the plaintiff proves that the
comment was published maliciously. It is this second stage of the analysis which raises the subjective issue of the
defendant's state of mind or motive. Malice is not limited to spite or ill
will, although these are its most obvious instances. Malice includes any
indirect motive or ulterior purpose and will be established if the plaintiff
can prove that the defendant was not acting honestly when he published the
comment. This will depend on all the circumstances of the case. Where the
defendant is the writer or commentator himself, proof that the comment is not
the honest expression of his real opinion would be evidence of malice. If the
defendant is not the writer or commentator himself but a subsequent publisher,
obviously this is an inappropriate test of malice. Other criteria will be
relevant to determine whether he published the comment from spite or ill will,
or from any other indirect and dishonest motive. V 84
The most recent authority for the double test is to be found in a text which has just come to hand, Duncan and Neill on
Defamation (1978). In a foreword, the Right Honourable Lord Salmon says that
Mr. Duncan is "recognised as the doyen of those counsel who have
concentrated most of their attention on the law of defamation and his
experience and expertise in this field is unrivalled." The authors state
the main principles relating to the defence of fair comment as follows (p. 62,
para. 12.02): (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must
be recognisable as comment; (d) the comment must satisfy the following objective test: could
any man honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the
defence can be defeated if the plaintiff proves that the defendant was actuated
by express malice. (The italics are mine.) 85
The following appears later (pp. 68-69, para. 12.14): 12.14 The general rule is that, in order to qualify as fair
comment, an expression of opinion must satisfy the following objective test:
could any man honestly express that opinion on the proved facts? It is to be
noted, however, that although the comment may satisfy the objective test, the
defendant may still be liable if the plaintiff proves that in making the
comment the defendant was actuated by express malice. 86
It is, I think, important to note the line clearly drawn by the authors
between the objective test and the subjective test. Equally important is their
view that the burden of proving malice rests upon the plaintiff. Some writers
have violently compressed this whole process of analysis into one statement,
ignoring the shift in the burden of proof with respect to objective fairness
and subjective malice, and have used the test for malice which is applicable
only to the writer as a universal test for all defendants. The result is a
statement such as this: "the comment must be published honestly in that it
is the expression of the defendant's real opinion." This statement is
contained in Gatley on Libel and Slander, 7th ed. (1974), p. 308, para. 729. Notwithstanding the general high esteem in which
this authoritative work is held, the statement in my view is unfortunate, as an
entirely wrong conclusion may be drawn in attempting to apply it in
circumstances such as those now before us. Indeed, the accuracy of the
statement is belied by numerous passages in the same text
which surround it. The very footnote it rests on recognizes that the
test of "honest expression of one's real opinion" is appropriate only
if the defendant is the writer or commentator. This footnote, purporting to be
authority for the statement in the text, reads as follows: '... the question is not whether the comment is justified in the
eyes of judge or jury, but whether it is the honest expression of the
commentator's real view and not merely abuse or invective under the guise of
criticism': per Lord Porter in Turner
(Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd., [1950] W.N. 83, [1950] 1
All E.R. 449 at 461 (H.L.). (The italics are mine.) 87
An earlier statement in the text also recognizes the inherent limitation
of this test. At p. 300, para. 716, it is said that
the comment "must be the honest expression of the writer's real
opinion" (the italics are mine). A later statement,
discussing this matter more fully than the laconic statement in para.
729, shows clearly that the proper test is a two-stage one of objective
fairness and subjective malice: see pp. 309-10, para. 731, as follows: It is clear, however, that a document which purports to be a
criticism on a matter of public interest, though admittedly fair in the sense
that it is not inspired by malice, may yet exceed the limits of fair comment in
that the language in which it is couched 'passes out of the domain of criticism
itself,' for example, descends to 'mere invective.' "The view expressed
must be honest and must be such as can fairly be called criticism' ... The
question which the jury must consider is this: Would any [honest] man, however
prejudiced he might be, or however exaggerated or obstinate his views, have
written this criticism? 88
Further, in discussion of malice itself, Gatley recognizes (i) that
malice is the only question after objective fairness is established, and (ii)
that there are many kinds of appropriate evidence of malice other than merely
whether the comment was the defendant's real opinion. Different types of
evidence of malice may be appropriate for different types of defendants: see
paras. 763, 765. See also pp. 329-30, para. 769, which
reads: 769. Honesty
and fair comment. Similarly, under a plea of fair comment, proof that the
defendant did not really entertain the opinion expressed in such comment, or
published it knowing that it was unjust, would be evidence of malice. If the
defendant is to succeed, the words complained of must be published honestly.
'Fair comment' must be 'the honest expression of the real opinion of the
defendants when they wrote it.' The defence of fair comment 'will fail if the
jury are satisfied that the libel is malicious.' If the plaintiff can prove
that the defendant 'was actuated by a malicious motive, that is to say, by some
motive other than that of a pure expression of a critic's real opinion,' the
defendant will fail in his plea of fair comment, even though the language used
does not otherwise exceed the limits of fair comment. 'Comment which may be
objectively and prima facie fair may become unfair if made with a malicious
motive.' 89
In another paragraph, which refers back to the statement in para. 729,
quoted above, Gatley expressly recognizes that the test of honest expression of
the defendant's views is, in fact, a part of the issue of malice, and that the
onus in this matter lies on the plaintiff (p. 342, para. 789): 789. Onus of proof of malice: fair comment. In the same way, the defendant
who relies on a plea of fair comment does not have to show that the comment is
an honest expression of his views. 'In alleging any unfairness the plaintiff
takes on him or herself the onus, also taken by an allegation of malice, to
prove that the criticism is unfair either from the language used or from some
extraneous circumstance.' VI 90
Confusion arises because the writer is the most common defendant and the
need to keep clear the distinction between the sequential tests of "fair
comment" and "malice" is not so great. Where the publisher is
not the writer, the need is imperative. If the analysis set out in Duncan and
Neill is accepted -- and I suggest it should be -- it is readily apparent that
newspapers need not be in any different position from the rest of the
population. Once a comment which is defamatory (in the
sense of lowering the subject's reputation) is shown to be objectively fair,
the only question is whether it was published with malice. This will depend on
whether there is appropriate evidence of malice, which will be different
depending upon whether the newspaper or its staff
writes the comment, or whether the newspaper publishes comments written by
others. 91
There is abundant authority to support the Duncan and Neill analysis of
the defence of fair comment. One of the clearest and most authoritative
statements is found in 24 Hals. (3d) 76, para. 131, as
follows: In the case
of a defence of fair comment on a matter of public interest the burden is on
the defendant to show that the facts are true and, if there is any evidence of
unfairness, that the comment is objectively fair, and it is then open to the
plaintiff to prove that the defendant made the comment maliciously, for
example, from a motive of spite or ill-will. 92
The authority for this statement is the House of Lords decision in
Turner (Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd., supra, at pp. 461-62,
and the Court of Appeal decision in Adams v. Sunday Pictorial Newspapers (1920)
Ltd., [1951] 1 K.B. 354 at 359-60, [1951] 1 All E.R. 865. In the passage
referred to in the Adams case, Denning L.J. says, p. 360: If [the
defendant] proves that the facts were true and that the comments, objectively
considered, were fair, that is, if they were fair when considered without
regard to the state of mind of the writer, I should not have thought that the
plaintiff had much to complain about; nevertheless it has been held that the
plaintiff can still succeed if he can prove that the comments, subjectively
considered, were unfair because the writer was actuated by malice. (The italics
are mine.) 93
The leading case on the defence of fair comment is Merivale v. Carson,
supra. In it, Lord Esher M.R. enunciated a test which
has been applied in numerous cases since. This test, which is clearly an
objective one, reads as follows (p. 281): The question
which the jury must consider is this -- would any fair man, however prejudiced
he may be, however exag gerated or obstinate his views, have said that which
this criticism has said of the work which is criticised? 94 This test was adopted with one
modification by Lord Porter in the
Turner case, in these terms, p. 461: To a similar
effect were the words of Lord Esher, M.R. (20 Q.B.D. 281), in Merivale v.
Carson which are so often quoted: ... would any fair man, however prejudice he may be, however
exaggerated or obstinate his views, have [written] this criticism ...? I should
adopt them except that I would substitute 'honest' for 'fair' lest some
suggestion of reasonableness instead of honesty should be read in. 95
Thomas v. Bradbury, supra, is the case which
definitely established that this objective test was supplemented by a
subjective test of malice. Speaking for a unanimous Court of Appeal, Collins M.R., at p. 732, said that: Proof of
malice may take a criticism prima facie fair outside the right of fair comment,
just as it takes a communication prima facie privileged outside the privilege. 96
In Lyle-Samuel v. Odhams Ltd., [1920] 1 K.B. 135 at 143 (C.A.), Scrutton
L.J. repeated this principle, emphasizing that the first, prima facie, test of
fairness is an objective test: "[I]n the case of
fair comment, a comment, which may be objectively and prima facie fair, may
become unfair if made with a malicious motive.' Or, as Stephen J. said in
Hennessy v. Wright (1888), 4 T.L.R. 574 at 577: "as to 'fair comment,' it
turned upon the nature of the comments and not upon the feeling of the
writer." 97
A most helpful case on this matter is Lyon & Lyon v. Daily Telegraph
Ltd., supra, which concerned a newspaper's defence of fair comment with respect
to a letter it published. The main holding in the case was that a newspaper is
not precluded from raising a defence of fair comment by the failure of the
writer of a letter to come forward and plead his bona fides or by the
newspaper's inability to prove affirmatively that the writer was not actuated
by malice. In the Lyon case, the writer had given both a fictitious name and a
fictitious address. There was no evidence of malice on the part of the
newspaper itself. Scott L.J. clearly endorsed an objective test of fairness
plus a subjective test of malice on the part of the defendant, saying, p. 319: ... fairness of the comment contained in newspaper's
correspondence columns must be judged by its tenor, subject only to the proviso
that the statements of fact upon which the comment is based are not untrue ... ... whilst malice or indirect motive may destroy the fairness of
an apparently fair comment, negligence does not. I hold, accordingly, that the
letter itself in no way exceeded the bounds of fair comment on a matter which
was obviously one of public inerest, and that, on the facts in evidence, there
was nothing to destroy the defendant newspaper's plea of fair comment. 98
In the course of his judgment, Scott L.J. made some significant comments
on the publication of letters by newspapers, pp. 318-20: I cannot accept the submission implied in the argument of counsel
for the respondents before us, that there is a general rule of law making it
the duty of every newspaper to verify the signature and address of the writer
before publishing it; although it may be desirable on public grounds that, so
far as is practicable, the newspaper should take such steps. In most cases,
writers unknown to the newspaper establish their identity by enclosing a
visiting card or a private note to the editor; but to hold as a matter of law,
where that has not been done, that the absence of such verification of itself
destroys the newspaper's plea of fair comment, would be to put upon newspapers
a heavy burden -- a burden so deterrent in practice as very much to reduce the
valuable contribution to public discussion which results from a free
publication of correspondence in the press. If the comment is in itself fair
within the meaning of the law, and if the newspaper publishes it solely as [a]
matter of public interest, I cannot see that any hardship is caused to the
persons criticised, if the newspaper is able to succeed on its plea of fair comment;
whereas, if the rule laid down by the judge were made general, a very heavy
burden of contingent liability would be put upon the press -- a burden which on
balance does seem to me undesirable from the public point of view, and contrary
to the principle of the existing law about fair comment. The reason why, once a
plea of fair comment is established, there is no libel, is that it is in the
public interest to have free discussion of matters of public interest. In the
case of criticism in matters of art, whether music, painting, literature, or
drama, where the private character of a person criticised is not involved, the
freer criticism is, the better it will be for the aesthetic welfare of the public ... [The right of 'fair comment'] is one of the fundamental rights of
free speech and writing, which are so dear to the British nation, and it is of
vital importance to the rule of law upon which we depend for our personal
freedom, that the courts should preserve the right of 'fair comment'
undiminished and unimpaired. 99
In the Court of Appeal decision in the present case, Brownridge J.A., dissenting, relied strongly on the following statement
also found in the judgment of Scott L.J. in Lyon at p. 318: There is no question but that the comment contained in the letter
represented the honest opinion of the 'Daily Telegraphy'; and at the trial no
doubt was cast upon the complete belief of the newspaper that they were
publishing a letter in which the writer was making a fair comment on a matter
of public interest. 100
In the light of the above comments of Scott L.J. concerning the
importance of free discussion on matters of public interest in the
correspondence columns of newspapers and of his statement that the fairness of
a comment must be judged by its tenor, it is inconceivable that he could have
meant that comments in letters must represent the newspapers' own opinion. He
must have meant that the newspaper honestly published the opinion "solely
as a matter of public interest" and therefore did so without malice. This
interpretation is consistent with earlier cases on the nature of malice, which
Scott L.J. undoubtedly had in mind when making this statement. It is also
consistent with the more felicitous expression of Goddard L.J. in the Lyon
case, as follows, p. 320: The words complained of in this case are contained in a letter
addressed to and published by the defendants in their newspaper, and were a
comment on a stage production of the plaintiffs. It is not contended that the
comment in its terms exceeds the limits of fair and honest criticism ... Here
there was no evidence of malice and the criticism itself contains none. 101
Understood in this way, Scott L.J.'s statement fits well with his other
comments as well as previous authority. 102 In the well known case of Silkin v.
Beaverbrook Newspapers Ltd. , [1958] 1 W.L.R. 743,
[1958] 2 All E.R. 516, the following passage, embodying an objective test, was
included in the charge of Diplock J. to the jury, p. 749: Could a fair-minded man, holding a strong view, holding perhaps an
obstinate view, holding perhaps a prejudiced view -- could a fair-minded man
have been capable of writing this? That is a totally different question from
the question: Do you agree with what he said? So in considering this case, members of the jury, do not apply the
test of whether you agree with it. If juries did that, freedom of speech, the
right of the crank to say what he likes, would go. Would a fair-minded man
holding strong views, obstinate views, prejudiced views, have been capable of
making this comment? If the answer to that is yes, then your verdict in this
case should be a verdict for the defendants. Such a verdict does not mean that
you agree with the comment. All it means is that you think that a man might
honestly hold those views on those facts. 103
This court has already implicitly accepted that the primary test is an
objective one: see the judgment of Davies J. in Bulletin Co. Ltd. v. Sheppard,
55 S.C.R. 454, [1917] 3 W.W.R. 279 at 284, 39 D.L.R. 339, where he says: In construing
that article and forming a conclusion as to what is really meant one must place
oneself in the position of a resident of Edmonton to whom it was specially
addressed on the then eve of an election for mayor and aldermen for the then
coming year. One must ask oneself in view of the then existing proved
conditions in civic matters, of Judge Scott's report, of the evidence given at
the trial and of all other surrounding circumstances, whether, as the trial
Judge found, the article did not go beyond what in the extraordinary and
unfortunate civic circumstances was fair and legitimate criticism or had
crossed the line as the Appeal Court found and become libellous. But in forming
one's conclusion, one must not confine one's mind to the ipsissima verba of the
extract from the article in question found to be libellous, but upon the
language of the article as a whole and in the light of all the surrounding
conditions and circumstances. 104
This objective test is subject, of course, to malice on the part of the
defendant: see Winnipeg Steel Granary & Culvert Co. v. Can. Ingot Iron
Culvert Co. (1912), 22 Man. R. 576, 3 W.W.R. 356, 7 D.L.R. 707 (C.A.). VII 105
Various texts dealing with defamation, in addition to those noted above,
also support the existence of a two-stage test, of objective fairness plus the
question of malice: see, for example, Salmond on Torts, 17th ed. (1977), pp.
187-88: The burden of proving that a comment is fair is on the defendant.
He must establish that the facts upon which the comment is based are true, and that the comment thereupon is warranted in the sense that it is
such as might be made by an honest man. Once the defendant has
established that in this sense the comment is fair, the onus is shifted to the
plaintiff if he wishes to prove that the prima facie protection is displaced by
the presence of malice in the defendant. 106
Again, it will be noted that the burden of proof of malice rests upon
the plaintiff. See also Fleming, The Law of Torts, 5th ed. (1977), pp. 579-81: The comment
must be fair in order to qualify for protection, but fairness is not synonymous
with truth or even reasonableness. The test is not whether reasonable men might
disagree with the comment, but whether they might reasonably regard the opinion
as one that no fair-minded man could have formed or expressed
... ... it is now settled that the defence is forfeited even in the
absence of malice, if the comment exceeds the limits of fairness. In Thomas v.
Bradbury [supra], however, the Court of Appeal partially reverted to the older
view by holding that comment which is prima facie fair
may lose its protection by proof of malice. This conclusion is hard to justify,
since fairness would seem to have reference to the criticism, not the state of
mind of the critic. Against this, however, it has been urged that, if there is
malice, the mind of the writer would not be that of a critic; and that, from
the point of view of policy, while it is undoubtedly in the public interest that
public matters should be open to comment, it is not in the public interest to
allow dishonest comment or comment inspired by personal motives of spite. 107
Further support for the two-test theory and the view that the subjective
test is the question of malice is to be found in Carter-Ruck, Libel and Slander
(1972), where the following passage appears, p. 126, under the heading
"Defences -- Malice": Malice If, considered objectively, the comment is fair comment the
second, subjective, question 'Did the defendant honestly hold the opinion which
he has expressed?', then has to be considered. 108
The question of the honest belief of the defendant may be of relevance
if and when the question of malice, proof of which rests upon the plaintiff,
arises, but in the case at bar malice on the part of the defendants has been
held by the trial judge and accepted by counsel for the plaintiff to be no
longer an issue. VIII 109
There is no doubt that the objective limits of fairness are very wide.
The best compendious statement of the principles to be applied in determining
whether a comment is fair is probably the following passage from the summing up
in Stopes v. Sutherland, [1925] A.C. 47 (H.L.), by Lord Heward C.J. (quoted in
Gatley, pp. 310-11, para. 732): What is it
that fair comment means? It means this -- and I prefer to put it in words which
are not my own; I refer to the famous judgment of Lord Esher M.R. in Merivale
v. Carson [supra]: 'every latitude,' said Lord Esher, 'must be given to opinion
and to prejudice, and then an ordinary set of men with ordinary judgment must
say [not whether they agree with it, but] whether any fair man would have made
such a comment ... Mere exaggeration, or even gross exaggeration, would not
make the comment unfair. However wrong the opinion expressed may be in point of
truth, or however prejudiced the writer, it may still be within the prescribed
limit. The question which the jury must consider is this -- would any fair man,
however prejudiced he may be, however exaggerated or obstinate his views, have
said that which this criticism has said?' Again, as Bray J. said in R. v.
Russell (unreported): 'When you come to a question of fair comment you ought to
be extremely liberal, and in a matter of his kind -- a matter relating to the
administration of the licensing laws -- you ought to be extremely liberal,
because it is a matter on which men's minds are moved, in which people who do
know, entertain very, very strong opinions, and if they use strong language
every allowance should be made in their favour. They must believe what they
say, but the question whether they honestly believe it is a question for you to
say. If they do believe it, and they are within anything like reasonable
bounds, they come within the meaning of fair comment. If comments were made
which would appear to you to have been exaggerated, it does not follow that
they are not perfectly honest comments.' That is the kind of maxim
which you may apply in considering whether that part of this matter
which is comment is fair. Could a fair-minded man, holding a strong view,
holding perhaps an obstinate view, holding perhaps a prejudiced view -- could a
fair-minded man have been capable of writing this? -- which,
you observe, is a totally different question from the question, Do you agree
with what he has said? 110
As a result of the breadth of the scope of fairness when considered
objectively, the issue in most cases concerns whether the defendant published
the comment maliciously. Lord Denning M.R. recognized this fact in Slim v.
Daily Telegraph Ltd., supra, at p. 503 in a passage which,
although some statements seem to go far, does express the importance of free
discussion in the correspondence columns of newspapers: In considering a plea of fair comment, it is not correct to
canvass all the various imputations which different
readers may put on the words. The important thing is to determine whether or
not the writer was actuated by malice. If he was an honest man expressing his
genuine opinion on a subject of public interest, then no matter that his words
conveyed derogatory imputations: no matter that his opinion was wrong or
exaggerated or prejudiced; and no matter that it was badly expressed so that
other people read all sorts of innuendoes into it; nevertheless, he has a good
defence of fair comment. His honesty is the cardinal test. He must honestly
express his real view. So long as he does this, he has nothing to fear, even
though other people may read more into it, see Turner (Robertson) v. Metro-Goldwyn-Mayer
Pictures Ltd. per Lord Porter and Silkin v. Beaverbrook Newspapers Ltd. per
Diplock, J. I stress this because the right of fair comment is one of the
essential elements which go to make up our freedom of
speech. We must ever maintain this right intact. It must not be whittled down
by legal refinemens. When a citizen is troubled by things
going wrong, he should be free to 'write to the newspaper': and the
newspaper should be free to publish his letter. It is often the only way to get
things put right. The matter must, of course, be one of public interest. The
writer must get his facts right: and he must honestly state his real opinion.
But that being done, both he and the newspaper should be clear of any
liability. They should not be deterred by fear of libel actions. IX 111
If the plaintiff does prove that the writer was activated by malice, is
the defence of fair comment destroyed for subsequent publishers? While there is
authority both ways, in my opinion the answer is in the negative. Malice
concerns the subjective state of the defendant. As such it is an issue
particular to the defendant alone. 112
In Egger v. Viscount Chelmsford, [1965] 1 Q.B. 248 at 265, [1964] 3 All
E.R. 406 (C.A.), Lord Denning M.R. said: if the plaintiff seeks
to rely on malice ... to cause a comment, otherwise fair, to become unfair,
then he must prove malice against each person whom he charges with it. A
defendant is only affected by express malice if he himself was actuated by it; or if his servant or agent concerned in the publication
was actuated by malice in the course of his employment. 113
This statement was preferred by the English Faulks Commission on
Defamation (1975, Cmd. 5909, at pp. 70-71) to the contrary opinion of Davies
L.J. in Egger's case. 114
In Lyon & Lyon v. Daily Telegraph Ltd., supra, it was not necessary
to decide the issue because malice on the part of the writer was not
established, but Scott L.J. nevertheless said at p. 319: It is
unnecessary to consider how far the rule, that the fairness of comment may be
destroyed by any oblique motive, extends, where it is the defendant's own
motives which are concerned; but, assuming that comment inspired by indirect,
improper or private motives ipso facto ceases to be fair, and that the writer
of such a letter to a newspaper will, when sued for libel, have put himself
outside the pale of the defence of fair comment, it does not necessarily
follow, as contended by counsel for the respondents, that, if he is made
co-defendant with the newspaper, the newspaper also will lose its defence of
fair comment. 115
In Hennessy v. Wright (No. 2) (1888), 24 Q.B.D. 445n, Lord Ester M.R.
supported the position that malice is a question particular to each defendant
alone. He said, p. 447: What must be
shewn is, that the defendant was malicious, and to shew that his informants
were malicious is not evidence that he was malicious. 116
This position is also supported in the leading case on malice, Thomas v.
Bradbury, supra, per Collins M.R. at p. 732: The right,
though shared by the public, is the right of every individual who asserts it,
and is, qua him, an individual right whatever name it be called by, and comment
by him which is coloured by malice cannot from his
standpoint be deemed fair. He and he only is the person in whose motives the
plaintiff in the libel action is concerned. 117
Fleming, in The Law of Torts, says at p. 581: One person's
malice cannot be properly imputed to another so as to defeat his defence of
fair comment any more than in the analogous case, already considered, of
qualified privilege. Accordingly, if the comment is otherwise fair, the malice
of one publisher does not prejudice another, except when he would be
vicariously liable for the first on ordinary principles of agency. 118
Thus, I would conclude that a defendant should succeed on a defence of
fair comment if he shows that the comment was objectively fair and the
plaintiff does not establish malice on the part of this individual defendant. 119
These principles of law apply alike to all defendants. It is clear that
no wider or different rule is necessary for newspapers. 120
On the facts of the present case, it is equally clear that, in light of
the principles I have enunciated, the trial judge should have left the issue of
fair comment to the jury. X 121
The appellant raises several subsidiary points. The first is whether the
statements were reasonably capable of being construed as comment. Neither court
below held that the statements complained of could not be construed as comment.
A statement that a person's attitude is "racist" or
"unbecoming" is clearly capable of being classified as comment rather
than fact. Certain facts forming the foundation of this opinion are of course
implied but, where the main thrust of the statement is capable of being
construed as opinion, it is up to the jury to determine just what is actually
opinion. 122
The second question is whether the statements were capable of defaming
the appellant directly and by innuendo in his capacity as a lawyer. The issue
of law is whether the statement is capable of this construction, as it is a
question for the jury whether in fact it is. In my opinion, this question was
properly put to the jury. Everyone who is an alderman has another occupation.
The fact that a statement says that he should carry these qualities into his
public duties does not suddenly rob the statement of its quality of being in a
matter of public interest. Put more simply, the fact that a statement about a person's
work as a public official or his position on a public matter reflects on himself as a private individual does not mean that the
statement is not one on a matter of public interest. Such statements will
generally reflect on the individual in several aspects. Even if the statement
defamed the appellant by innuendo, the respondents still have a defence if the
statement was fair comment on a matter of public interest. We are back again at
the defence of fair comment, and not whether the appellant's reputation was
damaged. 123
The third subsidiary question is whether the statements were on a matter
of public interest so as to be capable of protection as being fair comment. The
statements in question concerned the appellant's opposition as an alderman to
the establishment of an alcoholic rehabilitation centre for native people. It
stated that certain aspects of the position he took were incorrect
interpretations of the operation of zoning legislation, particularly with
respect to the onus of proof that the existing use is permitted or forbidden.
In effect, it stated that his position was inconsistent with that which a
person with legal training should, in the opinion of the writers, take toward
this issue. The important point is that the statement was a comment on the
proposed centre. This is a matter of undoubted public interest,
whether the statement is that the plaintiff should not be making certain
remarks as a lawyer, a priest, or whatever. The question of whether a comment
is one on a matter of public interest must be clearly distinguished from the
question of whether it is defamatory. The statement here may well be defamatory
(again a question for the jury) but, even if it is defamatory, it is not
actionable if the person publishing the statement has a good defence such as
fair comment. 124
I would dismiss the appeal with costs. |