Case clarifies tests for 'fair comment'

For the London Free Press - July 28, 2008 Read this on Canoe

A recent Supreme Court of Canada decision concerning a libel suit against a radio host referred to the changing attitudes surrounding public comment and defamation in today's modern and technologically savvy society.

In WIC Radio Ltd. v. Simpson, the court recognized that in an era where everyone can be a publisher, people may react to comments and interpret people's comments differently than before.

The case considered whether comments made by a well-known radio talk-show host about a social activist were actionable as defamation. The Supreme Court clarified the tests to determine the parameters of the "fair comment" defence.

In his portion of the decision, Justice Louis LeBel stated:

"There is no doubt that a comment may be defamatory. It must simply be borne in mind that just because someone expresses an opinion does not mean that it will be believed and therefore affect its subject's reputation.

"This is all the more true in an age when the public is exposed to an astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians' satire, to a high school student's blog. It would quite simply be wrong to assume that the public always takes statements of opinion at face value. Rather, members of the public must be presumed to evaluate comments in accordance with their own knowledge and opinions about the speaker and the subject of the comments."

The law will never evolve as fast as technology's effects. Sometimes that's good, as it allows things to sort themselves out without changes in the law not in our long-term interest. It's encouraging, however, to see comments like this, as it shows the Supreme Court considers how the law should evolve in modern reality.

It is quite true that the Internet and other methods of communication cause us to rethink many things.

Justice LeBel's point is that because we are more used to hearing opinions and points of view from diverse and numerous sources, we are less likely to jump to negative conclusions about the individual being commented on. In other words, a negative comment or two from one or two sources is less likely to make the public think less of the individual, which is the basis of defamation.

And a higher threshold for making the public think less of you can make the traditional cease-and-desist letter in response to that comment a risky move. In what has been dubbed the "Streisand effect," that kind of response can backfire by bringing even more attention to the comment. As well, a perceived over-sensitive reaction to a comment can actually legitimize the comment.

When faced with the publication of a negative comment, don't just assume it will be believed. A strong reaction in response demanding the comment be deleted, or some other action be taken, might bring more attention to the initial comment, legitimize it and subject you to ridicule.