fair comment

Fair comment protects the expression of opinion, not the assertion of fact. To succeed, the defendant must show that (1) the words were comment and not a statement of fact, (2) the facts on which the comment was based were true or privileged, (3) the subject was a matter of public interest, such as the conduct of a public official or a published book, and (4) the comment was honestly held and not made with malice. The comment need not be reasonable or moderate; it must be one an honest person could hold on those facts.

In criminal defamation the same idea appears in the exceptions to s.356 BNS (old s.499 IPC), which protect opinions in good faith on the public conduct of public servants and on the merits of public performances. English law renamed the defence “honest opinion” in the Defamation Act, 2013; Indian courts still use the older term.

Example

A critic who writes that a published judgment is “poorly reasoned” can plead fair comment, since it is an honest opinion on a matter of public interest.

In Indian law

• Section 356, Bharatiya Nyaya Sanhita, 2023, Exceptions (old s.499 IPC)

See also

defamation · libel · qualified privilege · innuendo

Read more in the study notes

• Defamation: libel and slander (Law of Torts)
• Contempt of court: civil and criminal contempt (Professional Ethics)
• Contempt: defences, procedure, punishment and contempt by judges (Professional Ethics)