Fair and bona fide

comment
UJWAL NANDEKAR
 Fair and bona fide comment-
 A fair and bonafide comment on a matter of public interest is a defence in
an action for defamation. The essentials of a fair comment are:

(i) That it is comment or criticism and not a statement of fact,

(ii) That the comment is on a matter of public interest,
(iii) That the comment is fair and honest.
The defence of fair comment applies to statements of opinion, a category
which includes any deduction, inference, conclusion, criticism, judgment,
remark or observation which is generally incapable of proof.

Deter i i g hether a state e t is opi io or fact is ofte a ery difficult

exercise.
 Public Interest
Example: The public debate about the inclusion in schools of educational
material on homosexuality clearly engages the public interest

 Whoe er seeks dishonor, or invites public attention, is said to challenge public

criticism; and he cannot resort to the law courts, if that criticism be less favourable
then a ticipated
Comment v. Fact
 Comment includes a deductio , inference, conclusion, criticism, judgment,
remark or observation which is generally incapable of proof
 A statement is more likely to be found to be comment in an editorial context
 In the context of political debate, commentary, media campaigns and public
discourse words that appear to be statements of fact may be properly
construed as comment
 Depending on context, co e t may need to be prefaced by phrases
indicative of comment –
E.g. i my opinion, it appears, it seems that…
Comment and Fact
 Comment must explicitly state or implicitly indicate the facts on which the
comment is being made
• The facts must be sufficiently stated or otherwise known to the listeners, and capable of proof
• If the facts are not stated or known there is no opportunity to later prove they exist:

Example: a book reviewer implies that author of a book gave interviewees the right to read
what she proposed to say about them and give their approval, i.e. copy appro al . The fair
comment defence was struck on a preliminary motion in that the reviewer did not give sufficient
information about the factual basis for her criticism of the book author’s methodology author’s
methodology.
Fair Comment and Malice
Proof of honest belief does not negate the possibility of finding malice.

Mere Exaggeration of Fact: No defamation

Exaggeration of Facts + Malice: Defamation

Fair and bona fide comment/ Honest
Opinion (Defamation Act, 2013)
 The defence of comment protects honest expressions of opinion
on matters of public interest. The rationale is that the truth of
opinions cannot be objectively tested.

 Like the defence of Truth, Honest Opinion must relate to a matter

of public interest
 The defences under this Division are not available to any comment unless the
comment relates to a matter of public interest and the opinion is based on proper
material.

 "proper material" if it is based on material that:

 (a) is substantially true, or

 (b) was published on an occasion of absolute or qualified privilege

Gardner v Fairfax Newspapers (1942)
SR(NSW) 171 at 174
Jordan CJ

 A critic is entitled to dip his pen in gall for the purpose of

legitimate criticism, and no one need be mealy-mouthed in
denouncing what he regards as twaddle, daub or discord
 Kemsley v Foot [1952] AC 345
Opinion or fact:

Foot published an article headed Lo er than Kemsley criticising the conduct of a

newspaper, Beaverbrook Press, unrelated to newspapers owned by the plaintiff, Kemsley.

The House of Lords held that a sufficient factual basis existed for the headline to be
comment as Kemsley was a proprietor of a number of newspapers, whose standards of
journalism were being unfavourably commented on by Foot. Ke sley’s ownership of
newspapers and their content was public knowledge.
 Elements
A fair and bona fide comment on a matter of public interest is not libel.

(a) in which the public in general have a legitimate interest, directly or indirectly,
nationally or locally, e.g. matters connected with national and local government,
public services and institutions and

 (b) matters which are at public theatres and performances of theatrical artists
offered for public entertainment but not including the private lives of public
performers. (London artist ltd. v Littler 1968 1 All ER 1075)
Kokan Unnati Mitramandal and Others versus Bennett
Coleman & Company Limited and Others 2012 (2) MLJ
338
Honourable Bombay High Court while dismissing suit for
defamation filed by plaintiff has held that

 defendants have shown and proved the truthfulness of the

statements and fair comment made by them in public interest. The
defamation of the plaintiffs alleged by them is, therefore, amply
justified.
Fair and bona fide comment
Legitimate criticism is No Tort
Matter of Public Interest
Examples:
1. Affairs of State, Public Acts of ministers and officers of State can be commented on
2. The administration of Justice
3. Public Institutions & Local authorities
4. Ecclesiastical matters
5. Books, pictures and work of art
6. Theaters, concerts and other public entertainments
Others
Morrison v Harmer (1837) 3 Bing NC 759

A medical man bringing forward some new method of treatment and

advertising it

Odger v Mortimer (1873) 28 LT 472

A man appealing to public by writing letters to a newspaper

 It is a defence to the publication of defamatory matter if the defendant proves
that the matter was contained in:

(a) a public document or a fair copy of a public document, or

(b) a fair summary of, or a fair extract from, a public document

"public document" includes:

(a) any report or paper published by a parliamentary body, or a record of votes,

debates or other proceedings relating to a parliamentary body published by
or under the authority of the body or any law, or
(b) any judgment, order or other determination of a court or arbitral tribunal of
any country in civil proceedings or
(c) any report or other document that under the law of any country: (i) is
authorised to be published, or (ii) is required to be presented or submitted
to, tabled in, or laid before, a parliamentary body, or
(a) any document issued by the government (including a local government) of a
country, or by an officer, employee or agency of the government, for the
information of the public, or
(b) any record or other document open to inspection by the public that is kept: (i) by
government or (ii) by a statutory authority, or (iii) by Court, or (iv) under
legislation, or
(c) any other document issued, kept or published by a person, body or organisation
which is treated in that jurisdiction as a public document, or
It is not defamation to publish substantially true report of the proceedings of a
Court of Justice, or of the result of any such proceedings.
A correspondent of a newspaper made available material for publication to the
editor of a newspaper, including a complaint made by a complainant against a
person, the complainant in the aforesaid case, under sections 500 and 504 of
the Code along with the allegations contained therein. These were published in
the newspaper.
The Court made it clear that this exception is also applicable to complaints or
pleadings made by the concerned parties to a dispute besides being applicable
to the judgments or order of the courts.