Ross v. AG Alberta et al


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May 31, 2001

Cartoons are protected by the law of fair comment!

In a lengthy discussion of the law of fair comment as it applies to cartoons, the New Brunswick Court of Appeal has overturned a trial judgement which awarded damages to the notorious anti-Semite, Malcolm Ross, over a cartoon that compared him to Joseph Goebbels, Hitler’s propaganda minister. The Court of Appeal reviews prior cases in Canada and the United States dealing with editorial cartoons, concluding that “cartoons are not to be literally construed but are to be considered as rhetorically making a point by symbolism, allegory, satire and exaggeration.”

Further, the Court reviews the law of fair comment, including the House of Lords’ recent decision in Reynolds v. Times Newspapers, [1999] 4 All E.R. 609, and applies that law to cartoons, noting that cartoons rely “on the devices of allegory, caricature and analogy”, and therefore contain subjective expressions of opinion. Applying Reynolds, and the classic definition of fair comment from Silkin v. Beaverbrook Newspapers Ltd., [1958] 1 W.L.R. 743, the Court states, in what is one of the most extensive and clearest discussions of the law of fair comment in Canada in many years, that the comment need not be reasonable and that “it need only be proven to be ‘fair’ or ‘relevant’ in the sense that the comment relates to the proven underlying facts on which the commentator relies and represents an honest expression of the real view of the person making the comment. To be protected, comment need not be proven to be true.” Accordingly, although Beutel failed to prove that Ross was a Nazi, he was entitled to rely on the defence of fair comment because he could prove a sufficient substratum of facts upon which he honestly believed that Ross was a Nazi. See Beutel v. Ross, N.B.C.A.

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