Fair comment is a legal term for a common law defense in defamation cases (libel or slander).
If the plaintiff can prove malice on the part of the defendant the common law defense of "fair comment" is defeated.
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.
But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him.
In this relation *320 I must express my disagreement with the view apparently taken by the Court of Queen's Bench in Ireland in the case of Lefroy v. Burnside [FN17], where the imputation was that the plaintiffs dishonestly and corruptly supplied to a newspaper certain information.
It would have startled a pleader of the old school if he had been told that, in alleging that the defendant "fraudulently represented," he was indulging in comment.
This has been so frequently laid down authoritatively that I do not need to dwell further upon it: see, for instance, the direction given by Kennedy J. to the jury in Joynt v. Cycle Trade Publishing Co. [FN18], which has been frequently approved of by the Courts.”In Branson v Bower [2002] QB 737, at p 748, para 29, Eady J said: “The comment must be upon ‘facts truly stated’ [29] A commentator must not deliberately distort the true situation.
The matter of distortion (whether dishonest or otherwise) may also come into play, however, at the stage of the objective test, because one cannot decide whether a hypothetical commentator could hold an opinion in a vacuum.
… If you were to take the view that it was so strong a comment that no fair-minded man could honestly have made it, then the defence fails and you would have to consider the question of damages.”In relation to malice in the context of fair comment (which is different from the malice in the context of qualified privilege), Lord Nicholls of Birkenhead NPJ said in Albert Cheng v Tse Wai Chun (2000) 3 HKCFAR 339 at p 360I to 361D: “My conclusion on the authorities is that, for the most part, the relevant judicial statements are consistent with the views which I have expressed as a matter of principle.
It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries.
Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed.