Fair and bonafide comment: A defence in an action of defamation

A fair and bona fide comment on a matter of public interest is a good defence in an action for defamation. Every person is entitled to express his opinion on matters of public interest. A statement is privileged if it is a fair comment on a matter which is of public interest, or is submitted to public criticism comments and criticism must be distinguished from mere statements of facts. The essentials of a fair comment are:

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

(b) that the comment is on a matter of public interest,

(c) that the comment is fair and honest.

Comment and not statement of facts: As stated above, comment or criticism must be distinguished from allegations of facts. A fair and bona fide comment on matters of public interest is an excuse in an action for defamation.

Thus there are two essentials of a fair and bona fide comment :

(a) the comment must be fair : The plaintiff has to show that the comment which he has published was based on facts which were true. If the comments is based on untrue facts, it cannot be a fair comment. It cannot be fair it is made maliciously.

The essence of the plea of fair and bona fide comment is that it should be in the first place comment on facts truly stated on matter of public interest. If the comment is not actuated with malice it will be fair and honest comment.

(b) the comment must be on matter of public interest: The second condition is that the comment must be on matters of public interest.

A fair comment can be made on the acts of public men who are performing public duty. The expression “public interest” is of very wide connotation. It includes everything such as literature, art, education, judiciary. The following matters are generally regarded as matters of
public interest:

(1) Affairs of state : public acts of ministers and officers of state.

(2) The administration of justice.

(3) Public institutions and local authorities.

(4) Ecclesiastical matters.

(5) Books, pictures, and works of art.

(6) Theatres, concerts and other public entertainments.

(7) Other appeals to the public, e.g. medical man inventing some new method of treatment and advertising it, a man appealing to the public by writing letters to a newspapers.

It is no part of the plaintiff’s case to establish that the defendant’s statement is untrue. The plaintiff has only to prove the publication of a statement defamatory to him. If, however, the defendant can prove that his statement is true he has a complete defence even if he made the statement maliciously for the law will not permit a man to recover damage in respect of an injury to a character which he does not possess.

The burden of proving that the statement is true lies on the defendant. It is the duty of defendant to prove that the statement is true and not that of the plaintiff to prove that it is false. the defendant does not discharge this burden by proving that he honestly believed it to be true. He must prove that it was true in fact. On the question of justification for defamation the burden of proof lies on the defendant. The burden of proof on this point is not shifted nor does the presumption of good conduct cease to be available in favour of the plaintiff in consequence of his having given evidence on his own behalf. It will be of no avail to defendant to show that he repeated correctly to a third person what he heard from another even though he told that third person that it was repetition, for they form a separate head of claim.

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