Radio host’s Nazi remark deemed fair comment
Supreme Court throws out libel suit against Rafe Mair
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.
“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.