Ra­dio host’s Nazi re­mark deemed fair com­ment

Supreme Court throws out li­bel suit against Rafe Mair

National Post (Latest Edition) - - Canada - BY TOBIN DALRYMPLE Canwest News Ser­vice

OT TAWA • The Supreme Court of Canada has unan­i­mously ruled that an out­spo­ken Van­cou­ver ra­dio host is not li­able for defam­a­tory state­ments.

The court up­held a pre­vi­ous B.C. Supreme Court de­ci­sion that the right to fair com­ment pro­tected “shock jock” Rafe Mair’s state­ments in an on-air edi­to­rial about Kari Simp­son, a pub­lic fig­ure whom Mr. Mair com­pared to Nazis and Ku Klux Klan mem­bers.

One me­dia law ex­pert sug­gested the rul­ing has stretched Canada’s free­dom of ex­pres­sion laws and made it eas­ier to de­fend defama­tion suits.

“[The rul­ing] fi­nally, fi­nally puts to rest this lin­ger­ing no­tion that com­ment or opin­ion has to be fair or rea­son­able,” said Mark Bantey, an ex­pert in me­dia law with Gowl­ings law firm in Mon­treal. “It gives con­sti­tu­tional pro­tec­tion to all opin­ions, no mat­ter how out­ra­geous, so long as they are based on the facts.”

On a Van­cou­ver talk show in 1999, Mr. Mair crit­i­cized Ms. Simp­son for hav­ing anti-gay views and said she re­minded him of Adolf Hitler and prom­i­nent Ku Klux Klan mem­bers. At the time, Ms. Simp­son had a rep­u­ta­tion as a leader “of those op­posed to any pos­i­tive por­trayal of a gay lifestyle,” wrote Jus­tice Ian Bin­nie.

In the le­gal bat­tle that en­sued over Mr. Mair’s com­ments, the B.C. courts be­came di­vided. A trial judge ruled that while sug­gest­ing Ms. Simp­son would be vi­o­lent to­ward ho­mo­sex­u­als is clearly defam­a­tory, Mr. Mair was fully pro­tected by fair com­ment.

How­ever, the prov­ince’s ap­pel­late court over­turned that de­ci­sion, ar­gu­ing the sub­jec­tive, “hon­est be­lief,” test had not been met. Mr. Mair said he did not per­son­ally feel Ms. Simp­son would be vi­o­lent to­ward gays and the im­pli­ca­tion was not in­tended.

Tra­di­tion­ally, to use fair com­ment — one of sev­eral de­fences avail­able in defama­tion suits — the de­fen­dant must meet four re­quire­ments, one of which is to hold an “hon­est be­lief ” in the defam­a­tory mes­sage.

Judge Bin­nie said that re­quire­ment was not needed, and opted in­stead for a more “ob­jec­tive test”— if any­one in so­ci­ety could come to the same con­clu­sion, with the same facts, fair com­ment was to be granted.

The other three re­quire­ments for the right of fair com­ment re­main un­touched — namely, that the state­ments be based in fact, that they be a com­ment or opin­ion, and that they be in the pub­lic’s in­ter­est.

“We live in a free coun­try where peo­ple have as much right to ex­press out­ra­geous and ridicu­lous opin­ions as mod­er­ate ones,” the rul­ing says.

Crit­ics say defama­tion suits of­ten are used as tools of in­tim­i­da­tion against the pub­lic and put a “chill” on free­dom of speech and demo­cratic de­bate.

Judge Bin­nie wrote, “The tra­di­tional el­e­ments of the tort of defama­tion may re­quire mod­i­fi­ca­tion to pro­vide broader ac­com­mo­da­tion to the value of free­dom of ex­pres­sion. There is con­cern that mat­ters of pub­lic in­ter­est go un­re­ported be­cause pub­lish­ers fear the bal­loon­ing cost and dis­rup­tion of de­fend­ing a defama­tion ac­tion. In­ves­tiga­tive re­ports get ‘spiked,’ it is con­tended, be­cause, while true, they are based on facts that are dif­fi­cult to es­tab­lish ac­cord­ing to rules of ev­i­dence.

“When con­tro­ver­sies erupt, state­ments of claim of­ten fol­low as night fol­lows day, not only in se­ri­ous claims [as here] but in ac­tions launched sim­ply for the pur­pose of in­tim­i­da­tion. ‘Chill­ing’ false and defam­a­tory speech is not a bad thing in it­self, but chill­ing de­bate on mat­ters of le­git­i­mate pub­lic in­ter­est raises is­sues of in­ap­pro­pri­ate cen­sor­ship and self-cen­sor­ship. Pub­lic con­tro­versy can be a rough trade, and the law needs to ac­com­mo­date its re­quire­ments.”

Calls made to Mr. Mair’s and Ms. Simp­son’s lawyers were not im­me­di­ately re­turned.

WARD PERRIN / CAN­WEST NEWS SER­VICE FILE PHOTO

“Peo­ple have as much right to ex­press out­ra­geous and ridicu­lous opin­ions as mod­er­ate ones,” the Supreme Court said in throw­ing out a li­bel rul­ing against Van­cou­ver ra­dio host Rafe Mair.

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