The St. Albert Gazette ends its Boxing Day editorial with “a word of caution to bloggers out there: you are subject to the same laws of defamation as any credible media outlet.”
One is tempted to ask: “Any credible media outlet? And that would be whom?”
But let’s leave that point to other bloggers. For, notwithstanding the editorial’s tone, the Gazette has raised an important issue that St. Albert’s bloggers are well advised to ponder. Indeed, bloggers are at considerably greater risk than conventional media businesses from the defamation laws of Alberta and other Canadian provinces.
There are two principal reasons for this.
The first is obvious: Most news media companies, being substantial businesses, possess in-house expertise about defamation law. Furthermore, they have access to lawyers and pockets deep enough to pay the cost of defending themselves against defamation suits, even those that may have merit. Bloggers, on the other hand, are mostly individuals with a point of view and an Internet account. They have little access to the financial and legal resources necessary to defend against a defamation action, no matter how frivolous.
This brings us to the second, more important, point. That is that the purpose of Canadian defamation laws is not, as first-year law students are taught, to allow individuals to defend their reputations against unjustified, unfair or false attacks. If this were so, defamation law would be accessible to people who actually depend on their reputations to survive, to wit: working people, small business people and others of ordinary means. The bitter reality is that the cost of the legal specialists required to successfully pursue an action in this esoteric and unfair corner of the law means that protection from defamation is completely unavailable to most ordinary Canadians who depend on their reputations to earn a living.
Rather, the true purpose of the law of defamation in all Canadian provinces is to protect the wealthy and powerful, including wealthy and powerful corporations, from criticism, including criticism that is entirely legitimate in a free and democratic society, and including statements that are well known to be true but which cannot be proved to be so in a court of law.
Let’s say this again in a slightly different way, so that we are perfectly clear: The true purpose of Canadian defamation law is to suppress legitimate free speech.
Lest readers think that by saying this your blogger is a charter member of the tinfoil-hat brigade, no less an authority than the Supreme Court of the United States, where until 1973 defamation laws were similar to those that persist in Canada, recognized this reality. In the landmark case, New York Times vs. Sullivan, Justice William Brennan Jr. placed U.S. defamation law in the context of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” This meant, the Court ruled in Times, that even unintentionally false statements about public figures must be protected if freedom of expression is to have the “breathing space” it needs to survive.
In Canada – to date – there has been no such commitment to free debate on public issues. Indeed, the courts have made it clear they have little interest in following the U.S. commitment to free speech. As a result, defamation law throughout Canada continues in the tradition of the Court of Star Chamber (whence in fact the tort of libel originated), giving the advantage to the plaintiff, assuming that the plaintiff’s reputation has been damaged, and placing the onus to prove statements complained of are defensible entirely on the defendant. Because of the costs and complexity of mounting a successful defence – even when a good one is available – a lone defendant like a blogger usually has no choice but to surrender, issue a groveling apology and hope for the best. In terms of the potential financial liability, the loss of a defamation suit can result in more serious consequences than those faced by many criminal defendants! This is the definition of libel chill. It hurts society and benefits the powerful.
Worse, Canadian defamation law allows corporations to hide behind the legal fiction that they are “legal persons” to use defamation law to attack justified and legitimate critics. This happens frequently in Canada, but is seldom reported in case law for the simple reason that most defendants surrender long before the matter gets to court. As bad, public officials are sometimes given access to tax dollars to pursue abusive defamation suits against individual taxpayers who have had the temerity to criticize them.
There is always hope, of course, that courts may surprise us and do the right thing. Last June, for example, the Supreme Court of Canada read the right to bargain collectively into the Charter of Rights and Freedoms, a huge step forward for basic human rights in which the Court had previously shown no interest. In November, the Ontario Court of Appeal ruled that journalists who write stories dealing with the public interest may be protected against defamation suits if they can prove they acted responsibly when they researched and wrote their stories.
But, really, we should be looking to our Legislatures to draft defamation legislation that both ensures the right of individuals to defend their reputations and protects the right of the rest of us – bloggers and credible media alike – to assail the powerful. This is well within the means of human ingenuity.
A private member’s bill would be a great place to start. Perhaps this is a project on which our two St. Albert MLAs, one a Liberal and the other a Conservative, could collaborate to the benefit of all Albertans.