Fair Comment As A Defence In Defamation

The elements of the defence of fair comment are summarized in Prud'homme v. Prud’homme 2002 SCC 85 :

[63] In common law, the defence of fair comment may be raised by anyone against whom an action for defamation is brought. Essentially, it consists of establishing that the remarks in issue were made in good faith and without malice, in the public interest. An essential element of the defence is that the facts to which the comments or opinions related must have been true

A key element of the defence is that the statements must be comments or opinions and not false factual statements. Last week’s British Columbia Court of Appeal decision in 567893 B.C. Ltd. v. Aasen, 2008 BCCA 303 makes this clear. The Court holds:

These purported to be factual statements and I do not consider that what was said about the relationship can be characterized as "fair comment". While I agree with the judge concerning the non-viability of any defence of qualified privilege concerning such remarks because this respondent had no particular duty to speak to Mr. Farr, I do not agree with the judge that what was said could be found defensible as "fair comment". Fair comment is a defence which protects defamatory criticisms or expressions of opinion; it does not protect defamatory statements of a factual nature. I consider the statements suggesting a corrupt influence on the mayor by the personal appellant purported to be factual and were defamatory of Mr. Chapman.