Fair comment as a defense for defamation

Introduction Journalism, in all its forms (print, broadcast, online) provides an important resource to society, performing all of the Lasswellian functions of the media, i.e. surveillance, correlation, entertainment, cultural transmission, and mass mobilization. These functions add up to reinforce the influence the media can have on society to shape opinions and create/reinforce social reality, and impact on reputation, either of individuals or groups. It is in regard of this last subject that the focus of this paper is directed at defamation. According to Sunday (2006), defamation as a concept of tort in civil law, is intended to shield a persons reputation from unwarranted attack through publication. Okoye (2008) stretches the idea further to state that defamation can be defined as the transmission to a third party, either orally or in writing, of information which tends to damage the reputation of another person. It is the publication of a statement, which exposes a person to hatred, ridicule, contempt and/or causes him to be shunned or avoided by right thinking members of society. Several opinions on defamation (Sunday, 2006; Okoye, 2008a, 2008b; Harper, 1936; Ewelukwa, 2004) share the opinion that for defamation to have a basis it must be established thus: ascertaining publication, malice, damage, and reputation. Since the work of the media professional involves him/her disseminating information which have a potential to determine how society sees the subject of the information disseminated, it is therefore very likely that they are usually at the receiving end of litigation involving defamation (whether libel or slander) both criminal and civil some of which may be unfounded. In these cases, there are some defence mechanisms available in the statute books that the media professional can use. One of these defences is the defence of fair comment.

The defence of fair comment There are several legal positions on the matter of fair comment, which differ from one legal clime to another. There is however a common strain in all these positions: that the defense of fair comment lies in the establishment that the defaming statement was a fair and honest opinion/comment expressed, based on verifiable facts that are of public knowledge on a matter of public concern, with the absence of malice (Harper, 1936; Adisa, 2009a,

2009b). Adisa (2009b) points out that fair comment covers arguments made with an honest belief in their soundness on a matter of public interest, and that for this defense to hold water, you must explain the facts upon which your opinion is based. If your facts are proven true, your opinion is protected. Okoye (2008b) adds that if the defendant can prove that the publication complained about is a fair comment made in the interest of the public, then he/she can lay claim to the cover that fair comment as a defence provides. Okoye (2008a; 2008b) cites Ewelukwa (2004:224) who holds that for a comment to be adjudged fitting under this defence, it must meet some criteria such as: The matter commented on must be of public interest. The matter commented on must be an expression of opinion by the defendant and not an assertion of fact by him. The comment on the plaintiff must be fair.

Okoye (2008) goes on to add that even if the opinion is wrong, insomuch as it is expressed honestly and based on verifiable facts, then it Indeed, it is still a solid defence against an action of defamation, confirming Harpers (1936) opinion on fair comment as "truth in substance" seemingly indicating a reasonably fair opinion on the facts.. The issue of honesty brings up the question raised by Hirsch (2010) who in citing the decision in the case brought by science writer Simon Singh, after he was sued over comments in the Guardian about the British Chiropractic Association in the United Kingdom, argued that fair comment as a legal defence should be changed to honest comment because of the need to establish honesty of intent and absence of malice even more than the presence of the supporting facts. Some of the issues surrounding fair comment as a legal defence include the absence of a test of "fairness", which has proven difficult because of the nebulous nature of the term (Harper, 1936; Tillman, 2001). Also, the definition of malice as a determinant of what should pass for fair or unfair comment, is another reference point. Crawford (2002) cites the case of Albert Cheng v Tse Wai Chun (2000), in which the text of the decision included that actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation (which covers a laymans understanding of malice, emphasis mine), whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. This decision implies that as long as the facts on which the expressed opinions/comments were

based are verifiable, then the defence of fair comment holds, regardless of whether the comment itself is malicious which is another vague term. In conclusion, it is clear that as a defence mechanism, fair comment rides on the first defence for defamation truth/justification based on the fact that it draws its power from the validity and verifiability of the facts that back the opinion/comment in contention. This places a responsibility on the media professional to ensure he/she is thorough in verifying and establishing facts before disseminating information.

REFERENCES Adisa, R. M (2009) Fundamentals of Newspaper Editing and Production: The Challenges of Copy Preparation, being Paper Presented at the NUJ (The Herald Chapel) Capacity Building workshop, August, 2009 Adisa, R. M (2009) Fundamental Concepts of Communication Law in Isa A. O. and Adisa R. M. Essentials Of Technical Paper Writing, Offa: Ahlan-Wasahlan Print Crawford, M. G. (2002) The Journalist's Legal Guide, Carswell Harper, F. V (1936) Privileged Defamation, Virginia Law Review Vol. 22 642 (1936) Hirsch, A (December, 1st 2010) Supreme court changes fair comment defence in libel cases being news article posted to the Guardian UK online version at

http://www.guardian.co.uk/law/2010/dec/01/supreme-court-fair-comment-libeldefence-change, retrieved on 15/07/2012 Okoye, I. E (2008a) JLS 712: Media Law and Ethics, being course module prepared for the National Open University of Nigeria, Lagos: NOUN Okoye, I. E (2008b) Nigerian Press Law and Ethics Lagos: Malthouse Sunday, O. A (2006) JLS 702: Publication Layout and Design, being course module prepared for the National Open University of Nigeria, Lagos: NOUN Tillman, J (June, 13th 2001) Must the defamation defence of 'fair comment' be 'fair'?http://www.pressgazette.co.uk/story.asp?storyCode=27564&sectioncode=1, retrieved on 15/07/2012