Law Times

Page 8 September 2, 2013 • Law timeS COMMENT Fair comment defence Courts go too far in making commentators link opinions to facts T he defence of fair comment plays a vital role in defamation law. It allows commentators to express their views on a range of topics of public interest. The defence has a wide application as the concept of public interest must not be "confined within narrow limits." But the law requires defendants to meet certain conditions, one of which is that the comment or opinion expressed must be "based on fact." But how far must commentators go in linking their opinions to those facts? In WIC Radio Ltd. v. Simpson, the Supreme Court of Canada adopted the requirement that "the comment must explicitly or implicitly indicate, at least in general terms what are the facts on which the comment is being made." As then-justice Ian Binnie stated in the case involving radio host Rafe Mair: "What is important is that the facts be sufficiently stated or otherwise be known to the listeners that listeners are able to make up their own minds on the merits of Mair's editorial comment." Binnie expanded on this by also stating that "a properly disclosed or sufficiently indicated (or so notorious as to be already understood by the audience) factual foundation is an important objective limit to the fair comment defence." So not only must the comment relate to some facts, but those facts must be properly disclosed, sufficiently indicated in the publication or notorious. And what's the reason for this requirement? Apparently, it's to allow readers or listeners to make up their own minds or evaluate the opinion. show would be regarded by If the technical requiremost of the public, and may ments necessary to satisfy the Social sometimes have to be regarded based-on-fact condition ever Justice by the law, as a sufficient facmade sense, they surely no tual basis." longer do. The requirements As a result, the British court have little relationship to the modified the based-on-fact reality of how people commurequirement so that the comnicate their opinions or how ment need only identify, exreaders or listeners evaluate plicitly or implicitly, in general them. Once a defendant estabterms the facts on which it's lishes that the statements unbased. der consideration constitute Alan Shanoff The July decision of the comment on a matter of pubBritish Columbia Court of lic interest, have some linkage to facts, and are opinions that someone Appeal allowing an appeal in Maincould honestly hold, that should be the stream Canada v. Staniford and ordering end of the exercise. The court shouldn't Don Staniford to pay $75,000 plus costs reject the defence merely because the to Mainstream Canada, a producer of facts relied upon weren't notorious or farmed salmon in British Columbia, illustrates the pre-Spiller analysis and hadn't been sufficiently disclosed. The British Supreme Court undertook thereby represents an undue restriction a thorough analysis of the development of on freedom of expression. Staniford, an environmental activist, the based-on-fact requirement in Spiller v. Joseph. Lord Nicholas Phillips stated: had campaigned against salmon farming "There is no case in which a defence of for years. As part of the campaign, Stanifair comment has failed on the ground the ford sent out and posted a press release comment did not identify the subject mat- that stated: "Salmon farming kills," "Salmter on which it was based with sufficient on farming is poison," and "Salmon farmparticularity to enable the reader to form ing seriously damages health." Staniford published his belief that fish his own view as to its validity." Lord Robert Walker stated: "Millions farmers are engaging in "the same game now talk, and thousands comment in as the cigarette manufacturers did for electronically transmitted words, about many years," compared the ingestion of recent events of which they have learned farmed salmon to smoking cigarettes, from television or the Internet. . . . The test and went as far as using mock cigarette for identifying the factual basis for honest packages on his web site and press releascomment must be flexible enough to al- es. His web site asserted: "Salmon farmlow for this type of case, in which a passing ing kills like smoking." All of this is clearly defamatory and, as reference to the previous night's celebrity the court decided, was referable to Mainstream. Scientists have told us that farmed (as well as wild) salmon contains contaminants that are capable of causing cancer but they're still debating the "consequences and effect on human health of consumption of salmon." So a justification defence couldn't succeed. But there's no reason why a fair comment defence shouldn't succeed but for the based-onfact requirement. Since the scientific research concerning cancer-causing contaminants in farmed salmon wasn't notorious and Staniford didn't specifically refer to it nor did the content on his web site clearly reference it, the B.C. appeal court ruled Staniford couldn't rely on a fair comment defence. Readers of the defamatory comments weren't "in a position to make up their own minds about the merits of the comments," the court said in rejecting the defence. It's not that Staniford's opinion wasn't based on a factual foundation. He lost because he didn't adequately link his opinion to the factual foundation. In my view, the decision lacks an air of reality. Stanford has said he plans on appealing to the Supreme Court of Canada. The top court should take a good look at the Spiller decision. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. Part-time, Executive LLM program for corporate counsel and practising lawyers Thursday, September 26, 2013 - 12:00pm to 2:00pm Information Session Thursday, October 10, 20132011 5:30 -to 2:00pm Wednesday, December 7, - 12:10pm 7:00 pm Friday, December 9, 2011 8:00 - Hall U of T Faculty of Law, FA3, Falconer9:30 84 Queen's Park, Toronto am U of T Faculty of Law, Faculty Lounge No registration required. 78 Queen's Park, Toronto Please feel free to drop free to drop anytime during hours. No registration required. Please feelin anytimeinduring these these hours. EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. UofT_LT_Sep2_13.indd 1 www.lawtimesnews.com 13-08-27 10:37 AM

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