Chapter 20 The Law of Defamation in Canada The law of defamation in Canada supposedly exists to protect the reputations of people about whom defamatory statements have been made. A defamatory statement is a statement that tends to lower a person s reputation in the eyes of others. At times, the law of defamation succeeds at this reasonable and laudable goal. Unfortunately, the Canadian law of defamation is not very good at doing what it is supposed to do that is, protecting the reputations of natural people. But it is very good at doing something that is not part of its claimed purpose that is, suppressing legitimate, democratic criticism of people, corporations and other institutions. There are several ways that the law of defamation in Canada, and in other Commonwealth countries, is a bad law from a journalist s point of view, or indeed from the point of view of any person concerned about freedom of expression in our society. - It is a complicated area of law that is costly both for litigators and defendants, making it expensive for journalists to defend against even shaky lawsuits, and extremely difficult for people who are not wealthy to defend their reputations. - The law, which has its origins in the notorious Court of Star Chamber, often puts the onus on the defendant, or the person accused of making a defamatory statement. In other words, unlike criminal law, the defendant is presumed to be guilty. (Technically, the term is liable. Guilt or innocence only applies to criminal cases. But, in reality, the effect is much the same.) This makes reasonable defences more difficult than they should be. - While the truth of a statement is held to be a defence, the truth must be proved according to the standards of a court of law not those of the court of public opinion or of common sense. So while everyone in town may know the character flaws of a well-known person, finding a witness willing to swear to them in court may make a defence of truth impossible. - Since the legal fiction of a legal person, i.e., a corporation, applies to the law of defamation, it is subject to frequent abuse by powerful corporations, unions and other wealthy groups as a mechanism to suppress criticism. - The penalties in Canada are potentially quite severe the financial losses to a person found to be liable for a mildly defamatory statement could be much higher than the fine in a minor, or even fairly serious, criminal prosecution. This adds up to a serious problem for working journalists especially freelancers and those who work for small publications with inadequate resources to defend against defamation suits.
However, there are some things journalists can do to protect themselves against frivolous defamation suits, and to provide themselves with a more effective defence in the event that a suit proceeds to the courts. These practices should be observed by all journalists those employed by large news organizations with the resources to fight lawsuits, and those who are not. The first thing Canadian journalists need to do is simply to remember that they do not live in the United States. This may involve unlearning a certain amount of information absorbed by osmosis from television and other sources. Since 1973, defamation law in the United States has taken a dramatically different route from the law in other English-speaking countries. As the result of a landmark Supreme Court case called Times versus Sullivan, the rights of U.S. journalists to free expression are vigorously protected by the courts. They can report facts and interpretations of facts about public figures which can be almost anyone in public life with little risk. They can allege criminal behaviour or inappropriate lifestyle choices by people in public life without needing to be prepared to defend their claims to the standards of a courtroom. There is good and bad in this, of course. The important thing for Canadian journalists to remember, however, is that none of this applies in Canada. Moreover, Canadian courts have repeatedly made it clear they have no interest in moving in the same direction. In Canada, defamation is a civil suit technically called a tort which means that in the Canadian Constitution it comes under provincial jurisdiction. Therefore, in each province of Canada there is a piece of legislation, usually called some variation of the Defamation Act, which sets out the rules of this tort. In every case, Canada s provincial defamation acts are based on the English tort of libel or, written defamation. All Canadian Defamation Acts extend the rules of libel to include any material that is taped, videotaped, filmed or otherwise recorded. In other words, these provincial laws extend the rules of libel to defamatory statements in any permanent form. There is another Common Law tort called slander which is generally defined as spoken defamation. The rules of slander more fairly balance the rights of the plaintiff (the person making the complaint) and the defendant (the person being held liable for a statement), so an argument can be made that slander should be the foundation of Canadian defamation law. But what should be is not what is, and Canadian journalists are forced to deal with defamation law based in the rules of the tort of libel. Because defamation is civil law and not criminal law: - There must be a complaint for a suit to be launched. - One is said to be liable, not guilty.
- The penalty is a sum of money called damages. (There are two types of damages compensatory, meant to compensate the plaintiff for his or her loss, and punitive, meant to punish the defendant.) The key problems with defamation law from a journalist s viewpoint are that the onus is on the defendant to prove there was no defamation, and that damages are assumed, therefore the defendant must prove there has been no damage. In Canada, anyone is theoretically responsible for a defamatory statement if they are involved in the publication of the item in any way be they the speaker, writer, reporter, editor, producer, publisher, Web hosting company, news vendor or paperboy! Speaking practically, this means that journalists are responsible for statements they write even if they are only accurately reporting something said by someone else. Using such phrases as he said, she alleged, according to the police are no defence. Moreover, the idea of malice in Canadian law is broadly defined to include such motives as trying to get good play for your story or get a promotion by breaking a big story. If the plaintiff can prove there was malice, the size of the damages can be increased. (In U.S. law, malice is defined in the ordinary sense of the word.) Damages in successful Canadian defamation cases are often in the range of $10,000 to $15,000. The difficulty of Canadian defamation law and the severity of its penalties gives rise to a phenomenon that journalists call libel chill. That is, because the expense and inconvenience of defending oneself against a defamation suit is so great, journalists and their employers become too cautious and do not publish stories that would be in the public interest. It is a fact that many more defamation suits are threatened than actually go to court. Sometimes this is because the plaintiff s case is weak. Just as often, though, it is because the threat of a suit is as effective as actually going to court at bullying journalists and newspapers into not writing stories inconvenient to the plaintiff. If you face a defamation suit, there are five principal defences available to you: - Truth. As noted above, the problem with this first defence is that you must be able to prove the truth of a statement you have made or reported to the high standards of a court of law. That means you must have documentary evidence that will be accepted by the court, or the testimony of a reliable witness who is prepared to testify on your behalf. Sometimes willing informants are not so willing when it comes time to testify. - Qualified privilege. Examples of a qualified privilege are a critical letter of reference written without malice, or a fair and contemporaneous (that is, timely) account of a public meeting, including a city or town council meeting. You need
to be able to prove that your statement was an accurate and timely account of what was said in the meeting for example, by producing Hansard, the written record of Parliamentary or legislative debate. Moreover, you must prove that the meeting was truly public and it s not if certain members of the public are excluded. Furthermore, this defence comes with a best-before date! A rehashed version of what was a fair and contemporaneous account when it was published will not longer have a qualified privilege months or years later. - Absolute privilege. You are said to have an absolute privilege when you publish a timely report of things said in Parliament, in a provincial legislature, or in a Canadian court proceeding. (This is why politicians who have been criticized in the House of Commons often challenge their attackers to repeat their remarks outside the House that is, where the law of defamation applies.) - Fair comment. A fair comment is a comment that states a reasonable conclusion based on provable facts. The problem with this defence is that you must be able to prove in court the facts on which the comment is based. A reasonable person might well conclude that Councilor Smith ought not to hold office because he is a thief. But you must be able to prove in court that he is in fact a thief if you want to argue your opinion was a fair comment. - Consent. To use a defence of consent, you must be able to prove that you have informed the person who claims to have been defamed that you intended to publish the statement they ve complained of, and further that they have consented to the publication. (Evidence could take the form of a note giving you permission to publish, a tape of the plaintiff giving you permission or a report of a witness who heard or saw the plaintiff agreeing.) One tricky aspect of this defence is that, in the eyes of the law, if the person who gave consent withdraws their consent, it is gone. Inevitably, your defence against a defamation suit will depend heavily on the testimony of witnesses. Lawyer Stuart M. Robertson, one of Canada s leading authorities on defamation law, says that witnesses must satisfy three criteria: 1) They must have first-hand knowledge of the truth of the facts you have published, or that a relevant document is authentic. 2) They must be able to be identified in court. 3) They must be credible that is, their testimony must be believable. If you don t have such a witness, Robertson concludes, you don t have credible evidence. While the law of defamation as practiced in Canada makes the jobs of journalists more difficult, there are a few sound practices that may reduce your chances of being sued for
defamation and which, if you are sued, may reduce the chances of the plaintiff being successful at law. First, it is helpful to state clearly in your copy the sources of your information. Regardless of the threat of lawsuits, this is sound journalistic practice. But stating the source of your facts clearly will also reduce the chances of a suit being brought, as a person who might bring a complaint (or his legal counsel) can see evidence that you do have a defensible case. There are advantages to this approach as well if you are wrong, as it makes clarification, explanation and, if need be, apology, easier and more obviously in good faith. The same logic applies to the value of clearly stating facts in your article that show the timeliness and necessary conditions to mount a defence of absolute or qualified privilege. (Prime Minister Paul Martin said in the House of Commons yesterday that ) Again, this is simply good journalism. In reality, of course, lawsuits that actually get before a court will involve the argument that you were making a fair comment. It is extremely helpful in such cases that you explain the logic behind your comment in the copy that will be read by readers. For example, if you were to state that a famous business tycoon was a fat liar, you would surely be on shaky ground. The sound of a defamation writ dropping on your desk might only be a matter of time. If you were to argue that this claim was a fair comment, even if evidence existed to support it, a court might be unlikely to look upon your argument with much sympathy. However, if you were to set out your argument clearly in the text of your article, then explain the reasons for reaching your conclusions (and if the facts on which your conclusions were based could be supported by documentary evidence or credible testimony) your fair comment defence would have a greater chance of success. Stated forcefully enough, the strength of your argument might even discourage a suit. For example, what if the imaginary tycoon was known to weigh 300 pounds on a frame of normal height, and furthermore that he had written on one occasion that as a businessman he habitually lied to his employees on matters of importance? If you were to recount these facts and then conclude, it is reasonable, therefore, to state that this tycoon is a fat liar, your defence would be a much stronger one. If you were to suggest as well, however, that such a person broke the law, you cannot use this defence. You must defend such a comment as a fact. So, if you were to conclude from the evidence of his business practices that he was a fat, lying thief, you might have a more difficult defence. Finally, when using the fair comment defence for a report of an opinion held by someone other than yourself, you should record the name and address of the person making the comment. You may require them as a witness. Without that information, the prudent
course may be to take the advice of the old wire service adage: When in doubt, leave it out. At this point, a reader might reasonably wonder, if the Canadian law of defamation is so effective for plaintiffs, why do we see politicians, criminals and others so often assailed in public without hearing of defamation suits occurring as a result? The reason is because there are other calculations that often weigh on a decision to sue for defamation. A person in trouble with the law may have neither the expertise nor the financial resources to defend their reputation. Indeed, a strong case can be made that because of its expense and complexity, defamation law is not available to the citizens who need it most those of us who actually depend on our good reputations to earn a living. As journalists, you have a moral obligation to treat the poor and powerless with the same respect as you treat the wealthy and powerful. Politicians may simply calculate that the political costs of a lawsuit are simply too great to warrant the risk or pursuing even a strong case. There can be no doubt that this political calculus has saved more than one Canadian journalist from an uncomfortable week in court. Finally, threatened suits that do not result in court action are not reported, so unless as readers we are particularly alert for example, scanning the corrections and apologies section of newspapers with a critical eye we may never know that a threat has been made and scored a success. Threats by corporations and other institutions, including unions, to sue for defamation have become quite common and constitute a dangerous trend. Yet they seldom actually go to court, and hence are under-reported in the media and in legal reporting publications. Common Civil Defamation Danger Areas Because of the nature of their work, there are several common situations that may pose a particular risk of civil defamation to journalists: - Testimony from a previous legal proceeding and court documents. Remember that what was said is not necessarily true. There is no privilege if the trial, hearing or inquiry happened a long time ago. - Statements by police and officials. Alas, just because someone wears a uniform or holds a high office, does not mean that what they say is true. No privilege may attach to what they say if the proper conditions are not met. Take the same care with statements by police and officials as you would with remarks by any Tom, Dick or Harry! Moreover, employees owe a duty of fidelity to their employer and may be disciplined if they breach it. People in such a circumstance make lousy witnesses.
- Statements by politicians. Reporting what politicians say is protected by qualified privilege if they say it in a public meeting. They and you are protected by absolute privilege if they say it in Parliament or a Legislature. In all other cases, the usual rules apply. - The Internet. Anything published on the Internet is subject to the same laws as anything published in any other form. - Photos of suspects. You have a qualified privilege if you publish a photograph of a person being sought by the police in connection with a crime. You have no such privilege if you publish a photo of another person, even if they have the same name. This happens more often than you may think. - Hearsay. Second-hand statements you have heard are dangerous. Hearsay is not admissible in court and probably should be excluded from good journalism as well. Criminal Libel Although it remains in the Criminal Code, the law of criminal libel appears to be dormant in Canada today. In the event a criminal libel case were brought in any of the subcategories of this law defamatory libel, seditious libel or blasphemous libel the Charter of Rights and Freedoms would certainly be used by the defence. However, in the current social and political atmosphere, such a prosecution seems unlikely. Nevertheless, criminal libel remains in the Criminal Code and hence the possibility remains that a prosecutor somewhere in Canada will try to use it in the future. Defamatory libel (Section 297) is defined in much the same way as the civil tort of defamation matter published without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule. The Criminal Code prescribes a penalty of two years imprisonment, or five years if the author of the offending statement knew it was false. Blasphemous libel (Section 296) is not defined by the Code. In its original sense it meant defaming God. Seditious libel (Section 59) is defined by the Code as the advocacy of the use of force, without the authority of law, to accomplish governmental change in Canada. Both carry a penalty of two years imprisonment. One can imagine circumstances in which such a law could come into use. The Code also specifically proscribes the use of a threat of defamation for the purposes of extortion (Section 303). Summary - The law of defamation in Canada creates several problems and concerns for working journalists. - It is complicated and expensive to defend against defamation suits.
- In defamation law, the onus is on the defendant to prove his statements are not defamatory, and did not do damage. - Truth is a defence, but truth must be proved to the standards of a court of law, which in civil law is the balance of probability. - Corporations may sue for defamation as if they were natural people. - Penalties can be quite severe, with damages of more than $10,000. - There are five principal defences truth, absolute privilege, qualified privilege, fair comment and consent. - Reporters must take care they have met the conditions of a defence in order to use it. - Journalists can protect themselves to a degree by citing their sources in their copy, and by explaining to readers the logic behind their conclusions and comments. - The Criminal Code offense of Criminal Libel is dormant in Canada today.