h**o
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http://en.wikipedia.org/wiki/Fair_comment
In the United States, the traditional privilege of "fair comment" is seen as
a protection for robust, even outrageous published or spoken opinions about
public officials and public figures. Fair comment is defined as a "common
law defense [that] guarantees the freedom of the press to express statements
on matters of public interest, as long as the statements are not made with
ill will, spite, or with the intent to harm the plaintiff".[1]
The defense of "fair comment" in the U.S. since 1964 has largely been
replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964
), (U.S. Supreme Court). This case relied on the issue of actual malice,
which involves the defendant making a statement known at the time to be
false, or which was made with a "reckless disregard" of whether the
statement was true or false. If "actual malice" cannot be shown, the defense
of "fair comment" is then superseded by the broader protection of the
failure by the plaintiff to show "actual malice."
Each state writes its own laws of defamation, and the laws and previously
decided precedents in each state vary. In many states, (including Alabama
where the case of Times v. Sullivan originated), the "fair comment" defense
requires that the "privilege of 'fair comment' for expressions of opinion
depends on the truth of the facts upon which the comment is based" according
to U.S Supreme Court Justice Brennan who wrote the ruling in Times v.
Sullivan.[2]
It is still technically possible to rely on the common law defense of "fair
comment" without referring to the "actual malice" standard set by the
Supreme Court of the United States but that would only be a likely course of
action when the defendant is absolutely sure that the facts upon which the
opinion of the defendant was based were true, or that any falsehoods are not
defamatory. If those facts are not absolutely true (and the actual malice
standard is not taken into account) then the defendant could be sued by the
plaintiff for damages, although the plaintiff would need to establish to the
satisfaction of a jury that the statements were defamatory, and that the
defendant published or made them.
"Actual malice" removes the requirement of being faultless in the reporting
of the facts by the defendant. (Under the law prior to this decision any
false statement could, if found to be defamatory, be grounds for damages.)
Instead it raises the question of whether factual errors were made in good
faith. "Actual malice" means then that the defendant intentionally made
false statements of alleged facts, or recklessly failed to verify alleged
facts when any reasonable person would have checked. If it is held that the
defendant made intentionally false statements of fact, that will form a
powerful argument that any statements of opinion based upon those facts were
made with malice. If the plaintiff can prove malice on the part of the
defendant the common law defense of "fair comment" is defeated.
The "actual malice" standard only applies when the statement is about a "
public official", or a "public figure", or in some cases about a "matter of
public interest". When it does apply it offers so much more protection to
the defendant that it would be very rare for the defendant to assert "fair
comment" instead. When the allegedly defamatory statement is about a purely
private person, who is not a "public figure" in any way, the defendant may
need to resort to the defense of "fair comment" instead. Also, the "actual
malice" standard is specifically part of United States law, derived from the
U.S. Constitution. The defense of "fair comment" is a part of the older
common law, and so might apply in non-U.S. jurisdictions which share the
common-law tradition, such as the United Kingdom and the British
Commonwealth. | t*******r
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