Fair comment is an important defence in defamation cases that serves to protect freedom of speech, allowing people to express their honest opinions on matters of public interest. In this article, we will discuss the key principles of fair comment in defamation law, using the case of Cook v Flaherty [2021] SASC 73 as a reference.
Fair Comment vs. Fact
According to Pryke v Advertiser Newspapers Ltd, a statement can only be considered comment if the facts it is based on are stated or indicated with sufficient clarity. As explained in Channel Seven Adelaide Pty Ltd v Manock, fair comment protects even obstinate, foolish, or offensive statements of opinion, provided certain conditions are met. The key distinction is between comments (such as opinions, inferences, or evaluations) and statements of fact, which affects the viability of the defence.
The Conventional Case of Fair Comment
In Pervan v North Queensland Newspaper Co Ltd, McHugh J described the conventional case of fair comment as one where the basis of the comment appears in the publication, and the reader is able to judge whether the facts justify the comments. The defence is concerned with comments based on facts, and the truth of those facts will affect the viability of the defence.
The Kemsley Situation
The Kemsley situation, as explained in Cook v Flaherty [2021] SASC 73, refers to a type of fair comment where certain forms of conduct are of such a nature as to invite comment. In these cases, it is not necessary for the reader, viewer, or listener to be in a position to form their own opinion, as long as the statements are presented as comments and not as facts.
Notorious Facts
In order for a comment to be considered fair, the facts it is based on must be true or published under privilege. While the facts do not necessarily have to be stated explicitly in the publication, they can be referred to or be considered "notorious," meaning they are well-known or easily ascertainable matters in the public arena.
Fairness and Accuracy
As mentioned in Cook v Flaherty [2021] SASC 73, fairness requires that the comment or opinion be based on facts that are true or published under privilege. Inaccurate or false facts will render a comment unfair, and therefore, not protected by the fair comment defence.
Key Take-Aways
In summary, the fair comment defence in defamation law is an important aspect of protecting freedom of speech, allowing individuals to express their honest opinions on matters of public interest.
The key principles of fair comment involve distinguishing between comments and statements of fact, the truth of the underlying facts, and the fairness and accuracy of the comment.