Fair commentary is a legal defense for libel, slander, and defamation lawsuits in the US, Canada, and UK. It protects opinions based on fact and made in the public interest. To qualify, opinions must be honest, without malice, and based on factual statements. Journalists often rely on fair commentary to protect themselves from lawsuits.
Correct commentary is an opinion expressed based on fact and made in the public interest. It is a common legal defense for libel, libel, and defamation lawsuits in the United States, Canada, and the United Kingdom. Courts in these countries have upheld this type of expression as a matter of free speech. As long as the opinion expressed is based on fact, honest comments can be used to express opinions, however outlandish. The protection for such comments originated from English common law, which are laws based on decisions of the courts and not established by executive or legislative action.
For fair commentary to apply in the United States, opinions must be expressed about a public person, such as a politician or celebrity, and expressed without malice—that is, expressed without deliberately distorting the facts. In Canada, such comments must be honest opinions based on fact, opinions on matters of public interest, and opinions that another person could reasonably hold. In the UK, courts also consider whether another person could reasonably support the opinion expressed and whether the defendant sincerely believes the opinion expressed.
The fair comment law distinguishes opinion from fact. For statements of opinion to qualify as fair comment, US courts apply a four-part test to distinguish opinion from fact. First, the judge asks whether the statement can be proven true or false. Second, ascertain the common meaning of the words used. Thirdly, it is asked in what context the statement was made. The fourth part of the test identifies the social environment in which the statement was made.
Merely stating an opinion is not grounds for a fair defense of comments against defamation cases. Courts often look for factual statements to back up the views held when deciding whether these laws apply. For example, “In my opinion, the mayor has taken drugs” provides no factual basis for the opinion stated and would probably fall outside the protections. “I saw the mayor inhale a white powder through a straw in the back room. In my opinion, the mayor was on drugs ”still provides a factual basis for the opinion, provided that the speaker witnessed such an event and did not deliberately distort what he saw. The inclusion of facts allows another person to judge the worthiness of the opinion.
Journalists often rely on fair commentary to protect themselves from cases of libel, slander and defamation. For example, a harsh theater review, no matter how unfavorable, is protected by fair comment if the critic experienced the written performance and based the opinions in the review on that experience. Similarly, a journalist can severely criticize a politician and portray him in a bad light, as long as the opinions are based on facts, such as the politician’s actions.
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