2.5 Opinion and fair comment privileges

Opinion and fair comment privileges are crucial protections for journalists expressing viewpoints on public issues. These legal doctrines shield writers from defamation claims when offering honest opinions based on disclosed facts.

Fair comment originated in English common law and was adopted by American courts to safeguard free speech. It applies to editorials, reviews, and other clearly labeled opinion content addressing matters of public interest, as long as the underlying facts are true and there's no malice.

Defining opinion vs fact

Statements of verifiable fact

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Top images from around the web for Statements of verifiable fact

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  Making and Supporting Claims | FASTrack WRIT 102 Writing Guide View original

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  Assessing the Verifiability of Attributions in News Text - ACL Anthology View original

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  The Basics - Fact Checking - LibGuides at Gustavus Adolphus College View original

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  Making and Supporting Claims | FASTrack WRIT 102 Writing Guide View original

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• Objective claims that can be proven true or false through evidence or investigation
• Based on observable reality rather than personal viewpoints or beliefs
• Examples include reporting on events, data, or scientifically established information
  • "The President signed the bill into law on Tuesday"
  • "The study found a 25% increase in cases over the past year"

Subjective viewpoints and beliefs

• Statements that express individual perspectives, judgments or feelings
• Cannot be definitively proven as factual even if widely held
• Protected as opinion rather than being treated as a factual assertion
• Examples include views on political issues, assessments of quality, or predictions
  • "This is the best film of the director's career"
  • "The proposed policy is misguided and will be ineffective"

Fair comment doctrine origins

Roots in English common law

• Emerged from 19th century English case law as a defense to libel claims
• Recognized the public interest in allowing free discussion and criticism
• Key early cases include Campbell v. Spottiswoode (1863) and Merivale v. Carson (1887)

Adoption in American jurisprudence

• First major U.S. fair comment case was Gott v. Pulsifer (1877) in Massachusetts
• Became widely accepted by state courts as a common law or constitutional principle
• Seen as an essential protection for freedom of speech and press on public issues
• New York Times v. Sullivan (1964) gave fair comment constitutional grounding

Elements of fair comment privilege

Based on disclosed facts

• The opinion must be clearly based on a factual statement made known to readers
• The stated facts provide a foundation for readers to understand the opinion's basis
• Protects pure opinion while still allowing critique of the underlying factual claims

Matters of public interest

• The topic commented on must involve a matter of legitimate public concern
• Includes government, public officials, public figures, and newsworthy issues
• Purely private matters are not covered by fair comment privilege

Honest expression of opinion

• The opinion must represent the writer's actual and sincerely held belief
• Statements made insincerely or in bad faith are not protected as privileged
• The opinion should appear to be the writer's real view even if objectively "unfair"

Without malice or reckless disregard

• Opinions lose protection if made with actual malice or reckless disregard for truth
• Actual malice means knowing or reckless falsity of the underlying facts
• Reckless disregard involves publishing with serious doubts about factual truth

Applying fair comment to journalism

Editorial content and columns

• Editorials and opinion columns are prime examples of fair comment in journalism
• Clearly identified opinion content presumptively has fair comment privilege
• Must still be based on disclosed or known facts and address matters of public interest
  • Political commentary in op-ed pages
  • Opinion articles on social issues or controversies

Reviews and criticism

• Reviews of books, movies, restaurants and other consumer offerings are protected
• Negative opinions in reviews are not defamatory if based on disclosed facts
• Reviewers can offer subjective assessments of quality, value, skill, etc.
  • "The chef overcooked the steak and underseasoned the vegetables"
  • "While visually stunning, the film suffers from weak character development"

Letters to the editor

• Letters written by readers expressing opinions are covered by fair comment
• Allows public participation in discussion of community issues and concerns
• Opinions in letters are generally not seen as factual assertions by the publication
• However, editors may be liable for publishing letters with clearly false facts

Limitations on fair comment

False or undisclosed facts

• Fair comment privilege is lost if the underlying facts are proven to be false
• The stated factual basis for the opinion must be accurate or non-defamatory
• Unstated facts that are implied but not disclosed can also undermine fair comment
  • Basing an opinion on rumor or unverified claims
  • Implying defamatory facts without stating them directly

Opinions as disguised defamation

• Opinions that are really just allegations of fact are not protected by fair comment
• Defamatory statements of fact cannot be immunized by phrasing them as opinion
• Courts look at whether a statement can be reasonably seen as implying a factual claim
  • "In my opinion, the mayor is a crook who takes bribes"
  • "It seems clear that the coach threw the game for gambling profits"

Fair comment vs absolute privileges

Comparison to judicial proceedings

• Statements made in the course of judicial proceedings have an absolute privilege
• Applies to attorneys, witnesses, judges, and others participating in court cases
• Protects even false and defamatory statements from liability to encourage candor
• Fair comment is a qualified privilege that can be lost if abused or exceeded

Contrast with legislative privilege

• Statements made by legislators on the floor or in official proceedings are privileged
• Exists to protect legislative independence and freedom of debate
• Covers even maliciously false allegations, similar to judicial privilege
• Fair comment requires underlying facts to be true and prohibits malice

Controversial applications of fair comment

Restaurant and business reviews

• Highly negative opinions in reviews can lead to defamation claims by businesses
• Reviews are protected if based on disclosed facts about food, service, value, etc.
• Broad insults, allegations of illegal conduct, or attacks on individuals may be actionable
  • "The owner is a tax cheat" vs "The prices seemed unreasonably high"

Literary and artistic criticism

• Defamation claims over negative book, art and performance reviews are common
• Opinions on the merits of creative works are classic examples of fair comment
• More general attacks on the author or artist as a person could exceed privilege
  • "This is the author's most lurid and depraved novel yet"
  • "It's clear the painter has no regard for basic anatomy or perspective"

Online user comments and forums

• Comments on news sites and internet forums often contain harsh opinions
• Fair comment can apply if based on facts and directed at public issues
• But many online opinions may imply undisclosed defamatory facts or show recklessness
• Site owners may be liable for user comments in some cases

Burden of proof in fair comment cases

Plaintiff's obligation to show falsity

• In most cases, a defamation plaintiff must prove the falsity of the statements
• This applies to the factual basis of opinions in a fair comment defense
• The plaintiff has to show the underlying facts are materially false
• Opinions not based on provably false facts remain protected by fair comment

Defendant's proof of privileged opinion

• The defendant has the initial burden to claim fair comment privilege
• Must show the statements are opinion based on disclosed or known facts
• Also has to demonstrate they relate to matters of public interest
• If proven, burden shifts to plaintiff to defeat privilege by showing falsity or malice

Losing fair comment protection

Showing actual malice or recklessness

• Fair comment is defeated if the plaintiff proves actual malice or reckless disregard
• Actual malice is knowledge of falsity or serious doubts about the underlying facts
• Recklessness is an extreme departure from standards of publishing
• If malice or recklessness is shown, false opinions lose fair comment protection

Proving defamatory facts false

• Opinions lose privilege if the plaintiff proves the stated facts are false
• The factual assertions must be materially false, not just minor inaccuracies
• Proving falsity negates fair comment even without showing malice
• Unstated implied facts can also be proven false to defeat fair comment

International perspectives on fair comment

UK honest opinion defense

• UK law has a similar defense called honest opinion rather than fair comment
• Protects opinions based on facts stated or referred to in the publication
• The opinion must be one that could have been honestly held based on those facts
• Replaces an older version of fair comment in the Defamation Act 2013

Canadian fair comment principles

• Fair comment exists as a common law defense to libel in Canadian law
• Protects opinions on matters of public interest based on fact and without malice
• Defendant must prove the statement is a comment not a fact, is based on facts, and is on a matter of public interest
• Plaintiff can defeat by proving facts are false or comment was made maliciously