Nine years later, Rafe Mair finally gets the monkey off his back: Supreme Court throws out libel case against outspoken BC talk show host
The judgment includes some uncharacteristically clear language from the Court in defence of free speech:
The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression,” Mr. Justice Ian Binnie said for the majority today.
“There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence.
“When controversies erupt, statements of claim often follow as night follows day, not only in serious claims [as here] but in actions launched simply for the purpose of intimidation.”
There is nothing wrong with laws that ‘chill’ speech which is false and defamatory, Judge Binnie said. “But chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship.
“We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones,” Mr. Justice Ian Binnie said, in a spirited defence of free expression in an era when extravagant over-statement is commonplace.
“In much modern media, personalities such as Rafe Mair are as much entertainers as journalists,” Judge Binnie said. “The media regularly match up assailants who attack each other on a set topic. The audience understands that the combatants, like lawyers or a devil’s advocate, are arguing a brief.
“Of course, the law must accommodate commentators such as the satirist or the cartoonist who seizes on a point of view, which may be quite peripheral to the public debate, and blows it into an outlandish caricature for public edification or merriment,” he said.
“Their function is not so much to advance public debate as it is to exercise a democratic right to poke fun at those who huff and puff in the public arena. This is well understood by the public to be their function.
“Public controversy can be a rough trade, and the law needs to accommodate its requirements.”
The judgment also adds some definition to the defence of “fair comment”:
The ruling sets a precedent by employing an “objective test” to grant fair comment. Beforehand, a majority of cases required the defence show four elements: that the comments were on matters of public interest, based on fact, clearly a comment of opinion, and the opinion expressed had to be the defendant’s own.
The ruling Friday, however, said that instead of having to prove the opinion of the defendant, if any person could “honestly express that opinion” based on the same facts, then fair comment is eligible.
Here’s another take:
A key component of the fair comment defence has long been that the person making the comment must sincerely believe in it. In the course of the ruling, however, the high court modified that test.
Commentary must still have a factual basis, be made without malice and be in the public interest, said Binnie.
But the test of honest belief is not whether the specific person holding the opinion believed it. The yardstick is whether any person might honestly hold the view based on the facts at issue.
Binnie acknowledged that is “not a high threshold” for any defendant to met. But neither is it appropriate to rule out “a piece of devil’s advocacy” in any debate on a matter of public importance.
My God. Is it possible the Supreme Court, notoriously wobbly on speech cases, might actually have got this one right?