M is a well‑known and sometimes controversial radio talk show host. The target of one of his editorials was S, a widely known social activist opposed to any positive portrayal of a gay lifestyle. M and S took opposing sides in the debate about whether the purpose of introducing materials dealing with homosexuality into public schools was to teach tolerance of homosexuality or to promote a homosexual lifestyle. In his editorial, M compared S in her public persona to Hitler, the Ku Klux Klan and skinheads. S brought an action against M and WIC Radio, claiming that certain words in the broadcast were defamatory. (…)
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.
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M was a radio personality with opinions on everything, not a reporter of the facts.
M’s “sizeable following” would have understood his comments in light of his well‑known style, which involves strong opinions sometimes conveyed with colourful and provocative language.
(…) that Duncan and Neill subsequently reformulated proposition (d) to say: “Could any fair-minded man honestly express that opinion on the proved facts?”; Duncan and Neill on Defamation (2nd ed. 1983), at p. 63 (emphasis added). In my respectful view, the addition of a qualitative standard such as “fair minded” should be resisted. “Fair-mindedness” often lies in the eye of the beholder. Political partisans are constantly astonished at the sheer “unfairness” of criticisms made by their opponents. Trenchant criticism which otherwise meets the “honest belief” criterion ought not to be actionable because, in the opinion of a court, it crosses some ill-defined line of “fair-mindedness”. The trier of fact is not required to assess whether the comment is a reasonable and proportional response to the stated or understood facts.
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In much modern media, personalities such as Rafe Mair are as much entertainers as journalists. The media regularly match up assailants who attack each other on a set topic. The audience understands that the combatants, like lawyers or a devil’s advocate, are arguing a brief. What is important in such a debate on matters of public interest is that all sides of an issue are forcefully presented, although the limitation that the opinions must be ones that could be “honestly express[ed] . . . on the proved facts” provides some boundary to the extent to which private reputations can be trashed in public discourse.
[48] Of course the law must accommodate commentators such as the satirist or the cartoonist who seizes on a point of view, which may be quite peripheral to the public debate, and blows it into an outlandish caricature for public edification or merriment. Their function is not so much to advance public debate as it is to exercise a democratic right to poke fun at those who huff and puff in the public arena. This is well understood by the public to be their function.
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People who voluntarily take part in debates on matters of public interest must expect a reaction from the public. Indeed, public response will often be one of the goals of self‑expression. In the context of such debates (and at the risk of mixing metaphors), public figures are expected to have a thick skin and not to be too quick to cry foul when the discussion becomes heated. This is not to say that harm to one’s reputation is the necessary price of being a public figure. Rather, it means that what may harm a private individual’s reputation may not damage that of a figure about whom more is known and who may have had ample opportunity to express his or her own contrary views.
