Comment is a statement of opinion on facts. It is the right of every member of the public to express his opinion on a matter of public interest. But that expression of opinion should be fair. If a statement is a fair comment on a matter of public interest, it is not actionable.
Right of criticism and free expression of opinion is considered essential for the progress of society and for inducing efficiency in the services of private and governmental establishments in the land.
The defence of fair comment must be distinguished from that of justification. Under the latter, the defendant must prove the truth of every defamatory fact alleged and every injurious imputation made. Under the former, the defendant must prove that the facts on which the comment is based are true and that the comment on these facts is fair.
Under fair comment, it is enough to prove that there was some substratum of fact on which the comment was made as was seen in Kemsley v. Foot.
Another point of distinction is in relation to the mental state of the defendant. In the case of justification the state of mind of the defendant at the time he published the defamatory words is immaterial.
Thus the presence of actual malice is irrelevant to the defence of justification. In the case of fair comment, the state of mind of the defendant at the time he published the defamatory words is most material.
Thus he cannot avail of any facts as justifying his comment of which he was ignorant at the time when he published the words complained of. Proof of actual malice would defeat the idea of fair comment.
To succeed in a defence of fair comment the defendant must show that the words complained of were:
(a) expressions of opinion and not statements of fact, i.e., they constituted mere comment;
(b) they were fair comment; and
(c) fair comment on some matter of public interest.
The statement must be an expression of opinion and not an assertion of facts. Sometimes it is very difficult to draw the distinction between fact and comment. To say of a person that he is "immoral" or a "sinner" may be either a statement of fact or a mere expression of opinion from the circumstances of the case.
To write of a man that he is "a disgrace to human nature" is a defamatory allegation of fact. But if the words were, "he murdered his father; and therefore is a disgrace to human nature", the latter words would certainly be a comment on the former facts.
To state accurately what a man has done and then to say that (in your opinion) such conduct is dishonorable or disgraceful is a comment which may do no harm, as everyone can judge for himself whether the opinion expressed is well-founded or not.
Misdescription of conduct on the other hand only leads to the one conclusion detrimental to the person abused and leaves the reader no opportunity for judging for himself of the character of the conduct condemned, nothing but a false picture being presented for judgment.
It is thus clear that a critic should never mix up his comments with the facts on which they are based. He should set out his facts first and so separate them from his comments so that the reader can readily distinguish the two and judge and value the criticism.
If the two are so entangled that inference is not clearly distinguishable from fact, then those to whom the statement is published will regard it as founded upon unrevealed information in the possession of the publisher and it will stand in the same position as any ordinary allegation of fact.
Imputation of corrupt, dishonorable motives, makes comment unfair
An imputation of corrupt or dishonorable motives will render the comment unfair unless such imputation is warranted by the facts truly stated or referred to, i.e., it is an inference which a fair-minded man might reasonably draw from such facts and represent the honest opinion of the writer.
Fair comment must be on a matter of public interest. Matters of public interest cover a wide range of subjects and individuals. In modern times it includes everything relating to national or local government, the administration of public institutions, whether of State or private, aided or charitable or educational, the public conduct not only of all public officials but of all persons such as clergymen, Judges, barristers, political candidates and agitators who take part in public affairs. In short, it includes the conduct of every public man and every public institution.
The private life of such persons is however only of legitimate public interest insofar as it affects their public activities and functions. The conduct of all civil and criminal actions in courts, the decisions of Judges, and the evidence of witnesses can properly be commented upon when the trial is over.
A newspaper is not entitled to invade the private life of an individual in order to discuss questions of character with which the public is not concerned. The Private life and character of an author or artist unconnected with the work he has given to the public is not a matter of public interest.
A critic may say what he pleased of the literary merits or demerits of the published work of an author. However severe, and even in a sense unjust, the criticism may be, the critic will not be liable, provided (1) he does not misrepresent the consents of the book, (2) he does not go out of his way to attack the character of the author, (3) his criticism may fairly be termed criticism, and (4) his criticism is the honest expression of his real opinion.
The principle underlying the plea of fair comment is that a man who appeals to the public in one way or another must be prepared to be judged by the public. Hence an unpublished private letter will be outside the sphere of defamation. The privilege is not limited to newspaper, but covers report in pamphlets or in a broadcast or any other form of publication.
Comment must not be malicious
Malice would make the comment unfair. This is an exception to the general principle that the motive of the defendant is irrelevant in the law of tort.
Lord Esher's remark in Merivale v. Carson, that where the critic is actuated by malice "the comment would not then be a criticism of the work: the mind of the writer would not be that of a critic, but he would be actuated by an intention to injure the author" perfectly encapsulates the essence of this prerequisite condition.
The defence of fair comment should be distinguished from that of qualified privilege. In the defence of fair comment, the right exercised by the defendant is shared by every member of the public.
In that of qualified privilege, the right is not shared by every member of the public but is limited to an individual who stands in such relation to the circumstances that he is entitled to say or write what would be libelous or slanderous on the part of anyone else.