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In Law, what is Fair Comment?

L. Burgoon
L. Burgoon

Fair comment is an expressed opinion based on facts and made in the public interest. It is a common legal defense to slander, 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 stated is based on facts, fair comments may be used to express opinions, however outlandish. Protection for such comments originated from English common law, which are laws based on courts’ decisions and not established by executive or legislative actions.

For fair comment to apply in the U.S., opinions must be made about a public person, such as a politician or celebrity, and expressed without malice—that is, expressed without deliberately distorting facts. In Canada, such comments must be honestly held opinions based on facts, opinion on matters of public interest and opinions another person could reasonably hold. In the U.K., courts also consider whether another person could reasonably hold the opinion stated and whether the defendant sincerely believes the opinion expressed.

Man with hands on his hips
Man with hands on his hips

Fair comment law distinguishes opinion from facts. For statements of opinion to fall under fair comment, U.S. courts apply a four-part test to distinguish opinions from facts. First, the court asks if the statement can be proven true or false. Second, it ascertains the common meaning of the words used. Third, it asks in what context the statement was made. The fourth part of the test identifies the social environment in which the statement was made.

Simply stating an opinion is not grounds for a fair comment defense against defamation cases. Courts often look for factual statements to back up asserted opinions when deciding whether these laws apply. For example, “In my opinion, the mayor took drugs” provides no factual basis for the stated opinion and likely would not fall under protections. “I saw the mayor inhale a white powder through a straw in the back room. In my opinion, the mayor took drugs” does, however, provide factual basis for the opinion, provided the speaker did witness 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 frequently rely on fair comments to protect themselves against libel, slander and defamation cases. For example, a harsh theater review, no matter how unfavorable, is protected under fair comment if the critic experienced the performance written about and based opinions in the review on that experience. Similarly, a journalist may severely criticize a politician and paint him or her in a bad light, as long as the opinions are based on facts, such as the politician’s actions.

Discussion Comments


And this is exactly why journalists tend to frown on "anonymous sources," particularly in the cases of controversial articles and editorials. Relying on an anonymous source to accuse an elected official of, say, using drugs could invite a lawsuit. Base that charge on observations from a named witness, on the other hand, protects the media legally and provides more credibility to allegations.

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