To what extent does the defense of ‘fair comment’ uphold the principle of freedom of speech?


         In countries where freedom of speech and expression is present, it is accepted that those people have the right to make fair comments about things. Fair comment is an expressed opinion based on facts that are made in the public interest.1Fair comment distinguishes opinions from facts It is a common legal defense to slander, libel and defamation lawsuits in some countries such as United States, Canada and the United Kingdom and the courts in these countries have upheld fair comment as a matter of free speech. As long as the opinion stated is based on facts, fair comments may be used to express opinions. Protection for fair comments originated from English common law, which are laws based on courts’ decisions and not established by executive or legislative actions.2For example, the onus is on Mr. Staniford (the Defendant) to prove that the statements were made honestly and fairly.  In order to do so, he must satisfy both a subjective and objective test: subjective honesty of belief in the defamatory statement, that is, the comment is one which a fair minded person would honestly make on the facts proved; and objective fairness, in the sense that the comment is one which a person could honestly make on the basis of all the facts known to the defendant.3

For fair comment to apply in the U.S., opinions must be made about a public person, such as a politician or celebrity, and expressed without malice—that is, expressed without deliberately distorting facts.4In Canada, fair comments must be honestly (Silkin v Beaverbrook Newswpapers [1958]1 WLR 743 (QB); Reading 2.2 held opinions based on facts, opinion on matters of public interest (London Artists Ltd v Littler [1969]2 QB 375) and opinions another person could reasonably hold.5In the U.K., courts also consider whether another person could reasonably hold the opinion stated and whether the defendant sincerely believes the opinion expressed.6

1 In the Law of Defamation in Canada/ Brown,R / (Accessed 18 March 2012)

2 In the Law of Defamation in Canada/ Brown,R / / (Accessed 18 March 2012)

3 In the Law of Defamation in Canada/ Brown,R / (Accessed 18 March 2012)

4 Public interest/Phillip,G/ (Accessed 18 March 2012)

5 Public interest/Phillip,G/ (Accessed 22 March 2012)

6 Public interest/Phillip,G/ (Accessed 22March 2012)

For statements of opinion to fall under fair comment, U.S. courts apply a four-part test to distinguish opinions from facts.7 First the court asks if the statement can be proven true or false. Second, it ascertains the common meaning of the words used. Third, it asks in what context the statement was made. The fourth part of the test identifies the social environment in which the statement was made.

 Freedom of speech is the freedom to speak freely without any restrictions from any individual, groups, races, governments, media or any group.8In reality the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, such as on libel, slander, obscenity, incitement to commit a crime, etc.9

 7 Mukherjee.S and Mitra.K.J(2003),Commercial Law including Company Law and Industrial Law, India:Kolkata,p.358

8 Journalism and Fair-comment/Antonio Coleman (Accessed 18 March 2012)

9 Public interest/Phillip, G/ (Accessed 22March 2012)


       The defense of fair comment allows the maker of an alleged defamatory comment to defend the statement on the basis that it is an honest comment made on the basis of true facts.10The true facts that the comment is based on must be contained in the same piece of writing or broadcast, or must be referred to sufficiently.11The defense of fair comment is available when the statement is deemed to be in the public interest.12 The defense of fair comment is most often used by people while analyzing some issue or event. The usage can range from political or economic analysis to reviews of plays, films, books or music.

Stating an opinion is not grounds for a fair comment defense against defamation cases. Courts often look for factual statements to back up asserted opinions when deciding whether these laws apply.13For example, “In my opinion, the mayor took bribe” provides no factual basis for the stated opinion and likely would not fall under fair comment protections. But, “I saw the mayor inhale a white powder through a straw in the back room: In my opinion, the mayor took drugs” does, however, provide factual basis for the opinion, provided the speaker did witness such an event and did not deliberately distort what he saw.14This detailed information allows another person to judge the worthiness of the opinion.

To defend, it is only need to convince the judge or jury that the comments were honestly-held opinion, and that this opinion was a reasonable one, based on the facts available. The words might be harsh or exaggerated, but one only has to satisfy the judge or jury that it was a comment that a fair-minded man or woman might have made on the same facts.

 10 Defense of fair comment renamed ‘honest comment’ by Supreme Court/Mariam/ (Accessed 25 March, 2012)

11 Defense of fair comment renamed ‘honest comment’ by Supreme Court/Mariam/ (Accessed 25 March 1, 2012)

1211 Defense of fair comment renamed ‘honest comment’ by Supreme Court/Mariam/

13   Blake.R/defamanation/ (Accessed 25 March 2012)

14 Blake.R/defamanation/ (Accessed 25 March 2012)


 2.1 Importance of Fair Comment in Media:

        Through “fair com­ment” priv­i­leges, the press has the free­dom to express pub­lished opin­ions regard­ing well-known fig­ures in the inter­est of the pub­lic.15These opin­ions are based on fact and with­out actual mali­cious intent to delib­er­ately do harm or with reck­less dis­re­gard to accu­racy.16It’s a fun­da­men­tal right in the media’s abil­ity to com­ment on mat­ters of impor­tance to the public17.The right to fair com­ment reflects an aspect of the role of jour­nal­ists as com­mu­nity watch­dogs and acts as a reminder that the mer­its of pub­lic fig­ures gar­ners crit­i­cism based on the respon­si­bil­ity their actions have on the larger society.18 The media’s priv­i­lege of fair com­ment and crit­i­cism not only pro­tects the jour­nal­ist under its laws, but also the com­mu­nity whose laws are reg­u­lated by pub­lic offi­cials. During the exten­sive his­tory of print jour­nal­ism, the impor­tance of fair com­ment has developed into an evi­dent role of cre­at­ing com­men­tary on polit­i­cal cor­rupt­ness and social injustice. As a com­mu­nity, people have been given the right to express their beliefs on the actions of one another freely and that right has led to mak­ing the coun­try a global leader in demo­c­ra­tic thought. Fair com­ment has made American jour­nal­ism the most free in the world.

2.2 Importance of Freedom of Speech:

      Practically freedom of speech serves many functions. One of its most essential functions is that decision-making at each segment is followed by discussion and consideration of a diplomatic range of ideas. Decisions are only made after adequate consultation and discussion, hence it is certain that better solutions are to be executed, which is less likely to cause arguments all would approve. Thus freedom of speech is important at all levels in society. It is most important for government as well. A government which does not know what the people feel and think is in a dangerous position. Government which restricts free speech runs a risk of destroying the creative instincts of its people and this is not a good sign for a nation.

 15Journalism and Fair-comment /Antonio Coleman/ (Accessed 18 March 2012)

16 Journalism and Fair-comment/Antonio Coleman / (Accessed 18 March 2012)

17 Journalism and Fair-comment/Antonio Coleman (Accessed 18 March 2012)

18 Journalism and Fair-comment/Antonio Coleman (Accessed 18 March 2012)

         Freedom of speech is also important to governments because when criticisms of a government are freely expressed, the government has the opportunity to respond to answer unfair comments and criticisms about its actions. Conversely, when freedom of speech is restricted, rumors, unfair criticisms, comments and absolutely false claims are circulated by word of mouth.19These spreading of false facts and rumors quickly spread throughout the country through conversation and secretly distributed writings. Government is in no position to answer these views, because they are not publicly stated. It is in a government’s interest to have criticisms in the public arena where it can answer its critics and correct its mistakes. The government generally has access to electronic and printing communication far in excess of individuals and groups. It is able to present its view only if the opposing views are in the open and known.

19Ronald.S and Mier.J(1998),Industrial Business Law, India:Kolkata,p.358

 3. History of Fair Comment:

               Fair comment is a legal term for a common law defense in defamation cases (libel or slander).United States in the United States, the traditional privilege of “fair comment” is seen as a protection for healthy, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a “common law defense guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff.”19

The defense of “fair comment” in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court).20This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a “reckless disregard” of whether the statement was true or false.21If “actual malice” cannot be shown, the defense of “fair comment” is then superseded by the broader protection of the failure by the applicant to show “actual malice.”

Each state writes its own laws of defamation and previously decided precedents in each state vary. In many states, (including Alabama where the case of Times v. Sullivan originated), the “fair comment” defense requires that the “privilege of ‘fair comment’ for expressions of opinion depends on the truth of the facts upon which the comment is based” according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.22

It is still technically possible to rely only on the common law defense of “fair comment,” but since there is no federal law of defamation, the Times v. Sullivan case, decided by the U.S. Supreme Court, extends over state laws as a powerful legal precedent, and it provides more legal protection to a defendant, since under the concept of “actual malice,” the absolute truth of the assertion need not be demonstrated.23

 19 In law what is fair comment/ Burgoon.L/ (Accessed 20 March 2012)

20 In law what is fair comment/Burgoon.L / (Accessed 20 March 2012)

21 In law what is fair comment/Burgoon.L / (Accessed 20 March 2012)

22 In law what is fair comment/ Burgoon.L/ (Accessed 20 March 2012)

23 In law what is fair comment/ Burgoon.L/ (Accessed 20 March 2012)

      In Canada, the comment must be on a matter of public interest (excluding gossip), a fair and honest expression of the author’s opinion, based on known and provable facts, and with no actual malice underlying it. The cardinal test of a statement is fair comment or whether the author honestly believed the opinion, and whether it could be drawn from the known facts. It should be obvious that the comment is an opinion and is not purporting to be a fact (Crawford 2002, pp. 48-52). (See Chernesky v. Armadale Publications Ltd. [1978] 6 W.W.R. 618 (S.C.C.)) 24

The ideas and concept of freedom of speech was found in early human rights documents. England’s Bill of Rights 1689 granted ‘freedom of speech in Parliament’ and the Declaration of the Rights of Man and of the Citizen25, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right. The Declaration provides for freedom of expression in Article 11, which states that, “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.” 26

Freedom of speech is considered as a multi- purpose or multi dimensional right which provides the right not only to express or spread information and ideas, but also describes three other crucial aspects of human rights and democracy.27

  1. The right to seek information and ideas
  2. The right to receive information and ideas and
  3. The right to impart information and ideas.

International, regional and national standards also recognize that freedom of speech, as the freedom of expression but it includes any medium be it orally, in written, in print, through the internet or through art forms.28It, also, means that the protection of freedom of speech as a right includes not only the content but also includes expression.

24 In law what is fair comment/ Burgoon.L/ (Accessed 20 March 2012)

25 Bill of Rights, Journal of Constitution Society/Roland.J/ (Accessed 18 March 2012)

26 The citation of this Act by this short title was authorized for the United Kingdom by section 1 of, and the First Schedule to, the Short Titles Act 1896. Due to the repeal of those provisions, it is now authorized by section 19(2) of the Interpretation Act 1978.

27 Bill of Rights, Journal of Constitution Society/Roland.J/ (Accessed 18 March 2012)

28 Bill of Rights, Journal of Constitution Society/Roland.J/ (Accessed 18 March 2012)

 4. Limitations:

         One of the most critical but important questions public faces is, if freedom is not absolute, then why would there be limitations of drawbacks to it. Some points that could be looked into justify the lack of convenience and to put limitation on freedom of speech are discussed below.

  • Freedom of speech is not absolute.

Whatever has been said verbally or through protest may mean exactly how it has been stated. Hence freedom of speech and expression has the possibility of being misinterpreted or misunderstood.29

  • Society and the legal system recognize limits on the freedom of speech.

Sometimes it is difficult for a society to deal with an individual or group who uses their right to freedom of speech to injure the reputation of an entire society or family. This creates problems within society and neighborhood.30

  • Issues arise in which freedom of speech conflicts with other values.

Sometimes there are religious, ethnic or cultural issues that arise and conflict with modern day’s rights providing every individual to express themselves. It leads to a conflict amongst generations, cultural, traditional and religious beliefs and practices. Thus freedom of speech has lead to bans on certain magazines, books, films, songs etc where an act of an individual was not acceptable in a society or state.31

 29know-how/Dadak,R and Silkin.L.L.P/ 24 March 2012)

30know-how/Dadak,R and Silkin.L.L.P/ 24 March 2012)

31know-how/Dadak,R and Silkin.L.L.P/ 24 March 2012)

 5. Criticism:

         A publisher can claim the fair comment and criticism defense in many instances. The courts are often lenient when fair comment or criticism is made of a political organization or any powerful corporation; in reviews of television programs, movies, plays and books; or in articles dealing with officials or agencies of the U.S. government.33 It has been established that one of the chief functions of the news media is to serve as a critic of the wielders of public or private power. 34 The courts explain that this function should not be arbitrarily concealed.

Many newspapers engage in “crusades” against a dishonest or bungling government and against crooked gambling or other criminal activities. 35 Given that a newspaper approaches such a “crusade” in a responsible manner, it is still within its rights. Every year Pulitzer Prizes are given to individual reporters for either having exposed private or public abuses of power, and in some cases, having caused their confections.36

 33Problem of fair/Ghamble,R/ 26 March 2012)

34 Problem of fair/Ghamble,R/ 26 March 2012)

35Problem of fair/Ghamble,R/ 26 March 2012)

36 Problem of fair/Ghamble,R/ 26 March 2012)


 In countries where freedom of speech and expression is present, it is accepted that those people have the right to make fair comments about things. As long as the opinion stated is based on facts, fair comments may be used to express opinions. This is usually used by Medias to give out their opinion. They have the freedom to produce opinions on people unless it is hurting someone’s reputation or career. Protests in public, writings, seminars, newspaper or any forms of media are seen or considered as an act against the legal system or the sovereign.

 Fair comment and freedom of speech do not mean that the people are absolutely free to comment on anything. However, public benefit is an important factor, the test for allowing restrictions upon freedom of speech and fair comment should strive to be somewhat strict. Legal restraints upon individual freedom of speech should only be tolerated where it would be necessary to prevent infliction of actual harm or to secure the liberties of others.

 A balance must be formed between the ability of individuals to be unrestricted in the free expression of thoughts and ideas, and the need to ensure that governments are able to efficiently take out their function of administration, law and order, and preserving the rights of individuals.


Blake.R(2007),Defamanation available at accessed 25 March 2012

 Brown.R. (2004), Law of Defamation in Canada, comprehensively sets the defense out as follows available at accessed on18 March 2012

 Burgoon.L(2008), In law what is fair comment available at accessed 26 March 2012

 Coleman.A, (2012), Fair Comment, Journal of Torch, available at accessed on 18 March 2012

 Dadak,R, Silkin.L.L.P(2006), Know-how available at accessed 24 March 2012

 Ghamble,R,(1992), Problem of fair available at accessed 26 March 2012

 Mariam.R, (2010), Defense of fair comment renamed ‘honest comment’ by Supreme Court available at accessed on 18 March 2012

 Mukherjee.S and Mitra.K.J(2003),Commercial Law including Company Law and Industrial Law,25th ed India:Kolkata

 Roland.J, (1998), Bill of Rights, Journal of Constitution Society, available at accessed on 18 March 2012

 Phillip.G (2008), Fair comment is dead. Long live honest comment, available at accessed on 24 March 2012

 Phillip,G(1998),Public interest available at accessed 22 March 2012).