Sentences with phrase «of fair comment»
The Court of Appeal held that the defence of fair comment applied.
gilbertsondavis.com
The employer no longer has the right of fair comment or the right to be honestly wrong.
Granted their comments were not «nice» but they fell well short of defamation and were in the realm of fair comment and fair complaint.
The presence of a defence, in this case the defence of fair comment, is unlikely to be affected by the case where merit can be demonstrated by the plaintiff.
Perhaps a better balance could be struck by continuing to bolster defences to defamation (see for example the defence of fair comment in British Chiropractic Association v Singh) or (whisper it) by reducing the costs of bringing and defending a defamation action.
Given this context, the trial judge did find the statements made by the defendant to be defamatory, but found that the defence of fair comment applied, and malice did not defeat this defence as it was not the dominant purpose [para 245],
Particular emphasis was placed on the importance of ensuring that the law of fair comment is developed in a manner consistent with the values underlying freedom of expression.
[189] As a result, to the extent that I concluded above that cet1ain of the words complained of were properly the subject of a fair comment defence, that defence is defeated by malice.
To date, modifications made by Canadian courts have been entirely in the area of defences (i.e., introducing a «responsible communication on matters of public interest» defence7 and expanding the availability of the fair comment defence8).
He held that the party seeking summary judgment has the onus of showing a genuine issue concerning malice, and since this was not made out by the plaintiff on the motion the defendants could rely on the defence of fair comment even if the statement was found to be defamatory.
Truth is an argument to any defamation case and in this context we could also extend to the defence of fair comment where as long as honestly held views are being expressed but there no issue of defamation.
He ruled that no reasonable jury could fail to uphold Matusevitch's plea of fair comment.
While the analysis of the fair comment defence in this context is still questionable (but one the trial judge is entitled to deference over), this can not be a proper analysis of malice, especially in light of the Court of Appeal's decision in Awan and previous jurisprudence, which properly includes recklessness disregard for the truth.
The successful use of the defence of fair comment in Baglow v. Smith in the type of discourse described by the court as «rude, aggressive, sarcastic, hyperbolic, insulting, caustic and / or vulgar» would give substance to these concerns.
Also, any potential defence of fair comment was defeated by the finding of malice.
In respect of (2), the Court of Appeal reiterated the test to establish the defence of fair comment, being: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) whether the person honestly express that opinion on the proved facts; and (e) whether the defendant was actuated by express malice.
The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases.
Without this clear delineation, the defence of fair comment is not available.
The refusal of Levant to conduct even basic fact - checking in his posts, refusal to correct the content, and the ill will demonstrated in the content of the blog, all demonstrated malice, which would defeat any defence of fair comment or qualified privilege.
Mr. Ford could also argue the defence of fair comment, but in doing so would have to present underlying facts — a pattern of erratic behaviour, for example — that would reasonably lead to his opinion.
[12] The defendant relies as well on the defences of fair comment and qualified privilege.
[32] The affirmative defences to defamation are found in the plea of justification, or of fair comment, or of qualified privilege.
However, the context in this case it was open to the trial judge to conclude that the statement was not recognizable as comment, and even then, the defence of fair comment would fail,
Yet even here, the defence of fair comment could not work given the presence of malice.
In Lowe v Associated Newspapers (2007) QB 580 he extended the defence of fair comment, and he was also the draftsman of the provisions of the Defamation Act 1996, ss 2 - 4 which allow newspapers to make offers of amends and thereby pay discounted damages assessed by a judge, rather than the higher level that a jury might have awarded in the old days.
The trial judge held that even if these statements were comments, the defence of fair comment would fail because the appellant failed to prove that the respondent lied deliberately, which was necessary to prove that he was in fact a liar.