Defamation 2.0
Iain MacKinnon (Chitiz Pathak LLP)
Andrew Bernstein (Torys LLP)
A confession!
• We are (at least sometimes)
media defence counsel!
• sometimes you start
identifying with your
client
• hard to separate your
“views” from the position
you’ve been arguing…
• don’t look to us for an
unbiased account of cases
we’ve been working on!
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What is defamation anyway?
• a statement about a person (real or
artificial) that has the tendency to lower
his, her or its reputation in the community
• statement does not have to be false to be
defamatory, although truth is a defence to
the cause of action (assuming you can
prove it)
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Why is common law
defamation harsh?
•
•
•
•
Falsity is presumed
Damages are presumed
Malice is presumed (sort of)
You can’t get out of it by saying "The Star
is reporting…," even if it is!
• It is a strict liability tort (could be a
complete accident, with plenty of due
diligence, but there is still liability)
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Harsh…
• Defamation law is
broad, technical and, in
the main, pretty
extreme in its
protection of rights
• What’s legal and illegal
does not always fit with
people’s “sense of
justice”, which is
dangerous (ask the
music industry…)
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Protection for Media
• Libel and Slander Act (Ontario) requires a notice
of libel within a very short time after publication,
and a short limitation period if defamatory
statements occur in a newspaper or broadcast,
with an opportunity to apologize
• It is expressly intended to ensure that
organizations that make a business out of
creating expression have early notice of a
lawsuit, and an opportunity to mitigate damages
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The clash
•
•
•
•
Free expression
guaranteed by s. 2(b)
important Charter
value
closely protected by
the courts since
Charter was enacted
incredibly important
on the Internet
Reputation
• considered a
constitutional value
• closely protected by
the common law for
hundreds of years
• incredibly vulnerable
on the Internet
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Pre-internet era, Supreme Court was
unsympathetic to free expression
concerns caused by defamation
Hill v. Scientology:
• Certainly, defamatory statements are very
tenuously related to the core values which
underlie s. 2(b).
• The right of public discussion is, of course,
subject to legal restrictions … conceived
for the protection of various private and
public interests with which, for example,
the laws of defamation and sedition are
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concerned.
Hill v. Scientology (cont’d)
• The right of a man to the protection of his
own reputation from unjustified invasion
and wrongful hurt reflects no more than
our basic concept of the essential dignity
and worth of every human being -- a
concept at the root of any decent system
of ordered liberty.
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Hill v. Scientology (cont’d)
• I simply cannot see that the law of
defamation is unduly restrictive or
inhibiting.
• Surely it is not requiring too much of
individuals that they ascertain the truth of
the allegations they publish.
• Those who publish statements should
assume a reasonable level of
responsibility.
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So you can guess what they
did…
• Refused to impose any real restrictions on
defamation law in the name of the Charter
• Maintain the presumption of falsity and
damages
• Impose no due diligence defence or need
to prove negligence
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Defamation and technology
• Defamation used to be “hard to do”
• Defamation is now “easy to do” because of
technology
• Mostly not a huge issue because most
people don’t enforce all their rights
• However, no doubt that it does cause
problems from time to time
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Ask yourself this question…
• What’s a more progressive force…
Law
Technology?
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So the question is…
• Defamation law survived the Charter
without a scratch … will it survive the
Internet?
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Technology changes…!
Liz:
"Okay, very funny.
You bought a
pager
from Dennis.
Will you take it
off now, please? "
Jack: "Oh, I can't. I'm
expecting a call
from 1983."
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Defamation law stays the same
• The last 15 years
have seen
the development of
some of the best
technology for
widespread
defamation
since …
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Of course, defamation was
possible before the internet too
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Five important areas where
defamation meets the internet
•
•
•
•
•
Liability for hyperlinking
Jurisdiction and libel tourism
Internet anonymity
Fair Comment
Defence of responsible communication
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Publication
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Crookes v. Newton
• Blogger writing about free speech issues.
Wrote an article about libel chill by a
litigious member of the BC Green Party,
Wayne Crookes, suing “openpolitics.com”
for an article called “Gang of Crookes”
• Hyperlinked the name Wayne Crookes
• Link was to the openpolitics.ca site
• Crookes complained and Newton did not
remove the hyperlink
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The Publication Requirement
• The actus reus in defamation law is publication the essence of that is the communication of the
statement to the public
• Question in Crookes v. Newton is whether
providing a hyperlink constitutes publication
(footnotes do not)
• BCCA: hyperlinking alone is not publication but
it might be with approbation or adoption
• SCC: Most of the parties (except Crookes)
agreed that approbation or adoption could be
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enough
CCLA submissions
• Internet enhances freedom of expression (before, this
right was somewhat restricted to people with a lot of
money and/or time!)
• Internet permits true marketplace of ideas (don’t need to
sue for libel - can use the internet to set the record
straight)
• Hyperlinks are key to the internet’s success as a medium
• Do we really want people responsible for all the content
they link to?
• Where do you draw the line?
• Hyperlinking should not be publication!
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Libel Tourism
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Libel Tourism Black v. Breedon
• Need a real and substantial connection to sue in
any province
• In Ontario, that is presumed if you meet one of
the requirements of rule 17
• H. International, in Chicago, sends out a press
release (including to Canadian media) and posts
statements things about B., who has a real
connection to Ontario but is neither an Ontario
resident nor a Canadian citizen
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Libel Tourism
• Question is: is this enough to ground a
real and substantial connection?
• Motion judge concludes that the tort was
committed in Ontario (so satisfies rule 17),
on the theory that the tort occurred in
Ontario, by virtue of the fact that the
defamatory material was accessible in
Ontario (on the internet).
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Libel Tourism
• Defendants argued in the CA that there
should be a targetting analysis: did the
defendants target people in the jurisdiction
(Ontario).
• CA says that they don’t have to decide
whether or not that is necessary as a
matter of law, because, as a matter of fact,
targetting happened (releases were
directed to Ontario media)
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Internet Anonymity
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Internet anonymity
• Don’t always know who is speaking on the
internet … but you can (almost) always find out
• Question is: when do you want to bring the full
force of the law down on an anonymous speaker
who is engaging in free expression?
• Most of the time, people are just looking to find
out who it is - should the court let them?
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Anonymity
• Rules of Civil Procedure are tilted in favour
of full disclosure:
– r. 30: produce an affidavit of documents that
contains every relevant document
• What if defendant A (website) has identity
of defendants B and C? Does it have to
be produced on the affidavit of
documents?
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Warman v. Fournier
• Question is: what do you need to show
before you can get this discovery?
– bona fides (i.e., good faith - a subjective test)?
– prima facie (i.e., a reasonable case on the
merits - an objective test of the strength of the
case?)
• Divisional Court said that in deciding this,
the court must take into account privacy
concerns and free expression
• remitted back to a different motion judge 30
Warman v. Fournier
• Court recognized potential chilling effect
• Court noted that there is no compelling
interest in allowing someone to libel and
destroy the reputation of another while
hiding behind a cloak of anonymity
• Balancing of interests
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Fair Comment
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WIC Radio v. Simpson
• Compare an anti-gay crusader (Simpson)
to Governor Wallace and Hitler
• Issue is: is that a statement of opinion?
• Radio personality admitted that he did
mean to say that Simpson was a bigot but
did not mean to say that she would
condone violence
• Question is whether it is necessary to
prove that the opinion is honestly held by
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the speaker
WIC Radio
• An individual’s reputation is not to be
treated as regrettable but unavoidable
road kill on the highway of public
controversy, but nor should an overly
solicitious regard for personal reputation
be permitted to chill freewheling debate on
matters of public interest
• Much more balanced than Hill v.
Scientology!
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WIC Radio
• Court found that an opinion can be fair
even if the speaker does not believe it - it
refers to limits to what any honest person,
however opinionated or prejudiced, would
express upon the basis of the relevant
facts.
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Responsible Communication
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Responsible Communication Grant v. Torstar
• Biggest change in the law in some time
• Permits a defence to defamation if the
communication is (objectively) reasonable
and in the public interest
• Unlike UK case, not restricted to
journalism: any communication can be
responsible
• Bloggers expressly referred to
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