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Tale of two countries: libel and freedom of expression.

The law of defamation protects a person's reputation from defamatory falsehoods. A publication is Considered defamatory if it has the tendency to lower one's actual reputation in the estimation of reasonable persons in the community. The defamatory publication may be published orally or in writing or in some other permanent or transitory form. The permanent form is considered to be libel. A statement made in a more transitory form is slander. In most provinces, however, the distinction between libel and slander has been removed. Slander is then treated the same as libel. (R.A.Brown, The Law of Defamation in Canada, 2ed., 1994)

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees the following:

* freedom of thought, belief, opinion and expression, including freedom of the press

* and other media of communication.

The Charter came into being in 1982. Many legal observers speculated on the impact this provision would have on the law of libel, as developed by Canadian courts in decisions making up the common law. It was possible, thought many, that the common law [of libel] would need to be altered to reflect the guarantee of freedom of expression for the Charter, part of the supreme law of Canada.

In the first case decided by the Supreme Court of Canada on the interplay of the law of defamation and section 2(b), it was indeed necessary to determine whether the common law would need to be altered. This was Hill v. Manning (1995). The Supreme Court reviewed the findings of fact made at the original trial. It was found that at the time defamatory statements were made, the plaintiff Hill was a Crown Attorney for the Province of Ontario who had previously advised police regarding a warrant. The warrant authorized a search of premises occupied by the defendant, the Church of Scientology. The result of the search in 1983 had been the seizure of approximately 25,000 documents. In 1983 and 1984, there were a number of applications relating to these documents. An order was made to seal 232 of these, on the basis that they were privileged.

In order to prepare for a separate court application, another Ontario government department, Consumer and Corporate Relations (hereafter the Department), sought and obtained a court order to review the seized documents. This order was obtained without notice to Scientology, despite the fact that a government lawyer had apparently consulted with Hill, who had advised that this was the type of application where notice should first be given. Hill was out of the country when the order was obtained.

A fair amount of confusion then arose as to whether or not the subsequent review of the documents by the Department included the sealed documents. Lawyers for Scientology were assured, ultimately, by Hill and a lawyer for the Department that the sealed documents were not opened. Nevertheless, Scientology decided to commence criminal contempt proceedings against Hill on September 13, 1984. On September 17, a press conference was held in which allegations of misconduct were made against Hill. The criminal contempt proceedings were dismissed, During the trial, it was revealed that an investigation by Scientology concluded that the sealed documents had not been tampered with.

Hill then commenced an action against Scientology and its counsel for defamation. In a trial before a judge and jury, he was successful and was awarded considerable damages: $300,000 general damages (assessed against both Scientology and lawyer Manning), $500,000 aggravated damages (against Scientology only) and $800,000 punitive damages (against Scientology only). An appeal to the Ontario Court of Appeal was dismissed. The Supreme Court then heard the appeal, dismissing it once again.

The Supreme Court noted that the appellants had originally challenged the constitutionality of the Ontario Libel and Slander Act, but given the nature of the arguments and the limited evidentiary basis for the challenge, focused on a second argument. That argument was that the common law of defamation was contrary to Charter values. This being so, it was asserted that it was necessary to modify the common law in order to properly reflect the values associated with freedom of expression. The appellants maintained that this required adoption of the actual malice standard developed by the United States Supreme Court in New York Times v. Sullivan (1964).

To properly understand the position of the appellants, it will be helpful to examine the New York Times decision. In that case, an organization calling itself "the Committee to Defend Martin Luther King and the Struggle for Freedom in the South" paid the Times to publish an advertisement. This criticized several Southern states and declared that "southern violators" of the Constitution were determined to destroy King and his movement. Montgomery City Commissioner L.B. Sullivan learned of the ad and sued the Times for libel. It was determined that there were several factual errors in the ad and that the Times had news stories on its files which contradicted a number of the assertions. Sullivan was successful at trial and was awarded damages for libel. The matter was appealed up to the US Supreme Court. It held that the guarantee of free speech under the Bill of Rights meant that a finding of libelling a public figure could not be made in these circumstances. Justice Brennan stated

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'."

Sullivan hadn't proved that the Times acted with actual malice. This was defined to be knowledge that the statement was false or acting with reckless disregard of whether it was false or not. The Court reached its conclusion that no damages could be awarded despite the fact that the Times may have been negligent in failing to discover the misstatements, which a review of its own news stories could have uncovered.

The decision and subsequent cases make it crystal clear that in the United States free speech is given massive precedence over traditional understandings of the principles pertaining to libel. The reputation of anyone the court deems to be a public figure (not just a politician or public official) is given scant regard in comparison with the deep veneration accorded free speech, including false speech. Free speech might be said to attain a virtually transcendent quality in US law and society.

In the New York Times case, the Court emphasizes that American society is premised on a profound national commitment to the principle that debate on public issues should be uninhibited and wide open and that vehement, caustic and sharp attacks on public figures are permissible. A later case indicates that protection is even extended to a parody ad in a pornographic magazine falsely alleging that a pastor (a public figure) has committed incest with his mother and needs to drink before preaching. This formidable right exists even though it was found at trial that the intention was to cause emotional distress (Hustler Magazine v. Falwell (1984).

In marked contrast to the US Supreme Court, the Supreme Court of Canada in Hill is motivated by a genuine desire to strike a balance between the competing values of freedom of expression and reputation of the individual. Justice Cory stresses that democracy has always recognized and cherished the fundamental importance of the individual. A good reputation is closely related to the innate worthiness and dignity of the individual. Justice Cory provides a historical survey of humankind's great concern for the damage caused by defamatory statements, commencing with Exodus. During Roman times, punishment for libel included imprisonment and exile for life. In England following the Norman conquest, it was regarded as a sin.

Justice Cory goes on to explain why he disagrees wholeheartedly with the actual malice standard from New York Times. He considers that the rule was laid down in the context of a heated social and political debate. The advertisement claimed to be defamatory was general in nature; it did not mention the plaintiff by name. Further, libel awards had been so excessive as to threaten the continued existence of "an American press virile enough to publish unpopular views on public affairs." Such has not been the case in Canada.

Justice Cory surveys criticisms of the case made by American commentators. The standard developed was overly influenced by the dramatic facts underlying the particular dispute and has not stood the test of time. As well, it has not served to deter libel actions. It has shifted the focus of defamation suits away from their original purpose of ascertaining the truth of the statements. Instead, the onus is on the plaintiff to establish malice on the part of the speaker. As this involves an extensive inquiry into media procedures, it has drastically increased the costs of litigation. For these and other reasons, the Canadian Supreme Court rejects the actual malice rule completely. In its application to the parties before it, the Court concludes that the common law of defamation complies with the underlying values of the Charter.

In rejecting the American approach, the Supreme Court has struck a blow for prudence and fairness. A better balance between free speech and reputation has been achieved. Nonetheless, it might be argued that the Court was remiss in not considering a possible deficiency in the common law. There may be difficulties in determining the truth of an apparently credible news story. Despite genuine efforts to ascertain the facts, it may turn out that a given statement will be proven in court to have been false. The fear of such an eventuality could result in libel chill.

A possible solution is to modify the common law to make defamation a strict liability matter. If this were to be done, a defendant could successfully defend herself if it was established that due diligence was exercised. Liability would be avoided if she could demonstrate that reasonable care was exercised in ascertaining the truthfulness of the statements prior to publication. (D.Boivin, "Accommodating Freedom of Expression and Reputation in the Common Law of Defamation," 22 Queen's Law Journal 229). Only time will tell if the Supreme Court will be open to such a proposal. It has given no suggestion in Hill that it is prepared to entertain this possibility.

We do take from Hill an awareness that in Canada the principles underlying protection of reputation are to be adhered to far more rigorously than in the United States. Freedom of expression is important but must be weighed against other significant values.
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Author:Normey, Rob
Date:Oct 1, 2002
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