While I was off in pursuit of bass, the Supreme Court issued a major media law ruling affecting the defence of 'fair comment' in defamation suits.
The case involves Rafe Mair, a high-profile radio host in B.C. in 1999, and Kari Simpson, who sued Mair after he hammered her during a commentary (Simpson is opposed to any positive depictions of the gay lifestyle).
Here's the Supreme Court ruling.
In the course of the editorial, the controversial former radio commentator made references to the Klan, Hitler and skinheads, although he claimed he wasn't saying that Simpson actually advocated violence against gays.
Simpson sued and the original trial judge found that, despite Mair's disclaimers, his words could be understood by listeners as implying that Simpson condoned violence.
The judge went on, however, to say that Mair wasn't liable for damages because he held an honest belief in the views he expressed - one of the traditional elements in the legal defence known as fair comment.
The B.C. Court of Appeal overturned the decision and said Mair and his employer at the time - WIC Radio which controlled radio station CKNW at the time - hadn't made out an adequate defence.
The Supreme Court, in Friday's judgment, restored the finding of fair comment and went on to rewrite the legal test for such a defence.
"In my view, with respect, the court of appeal unduly favoured protection of Kari Simpson's reputation in a rancorous public debate in which she had involved herself as a major protagonist," wrote Justice Ian Binnie.
There was no proof that Mair's dominant motive was personal malice, said Binnie, and thus "his expression of opinion, however, exaggerated, was protected by the law.
"We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones."
From the June 28 Globe and Mail:
The media should not live in constant fear of facing a libel suit every time a provocative commentary is published or broadcast, the Supreme Court of Canada said yesterday in a major ruling won by controversial Vancouver radio broadcaster Rafe Mair.
In a 9-0 decision that modernizes the defence of fair comment, the court found that Mr. Mair did not defame Christian-values advocate Kari Simpson when he denounced her stand on a book-banning controversy.
"An individual's reputation is not to be treated as regrettable but unavoidable roadkill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to 'chill' freewheeling debate on matters of public interest," Mr. Justice Ian Binnie said.
Judge Binnie said that the key to a defence of honest belief - particularly in an era when extravagant overstatement is common - should lie in whether an honest person could have held the same opinion. ...
According to the Globe story, Binnie felt Mair was as much an entertainer as a journalist.
Judge Binnie said yesterday 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."
Judge Binnie expressed a concern that issues of public interest could go unreported "because publishers fear the ballooning cost and disruption of defending a defamation action. ... Public controversy can be a rough trade, and the law needs to accommodate its requirements."
The legal tests the court set out to determine "honest belief" include:
The comment must be on a matter of public interest.
It must be based on fact.
Although it can include inferences of fact, the comment must be recognizable as comment.
It must be capable of satisfying the question: Could any person honestly express that opinion on the proved facts?
Addendum
On July 2, CBC.ca published a backgrounder on the ruling.