Read the Supreme Court’s decision on Mair

and it is interesting reading. Among other things, the judges pointed out that Ms Simpson, an anti-gay activist, herself used provocactive, aggressive language to defend her case, e.g. that there is a “war” between homosexuals and non-homosexuals. Meanwhile, the more long-lasting decision will be the following test on what constitutes “honest belief”, a key component of the argument of “fair comment” that is a standard defense against defamation, particularly by the media.

It is therefore appropriate to modify the “honest belief” element of the fair comment defence so that the test, as modified, consists of the following elements: (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 recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice.

Supreme Court of Canada, June 27, 2008


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