Merry Christmas from the Supreme Court of Canada – sort of

Freedom of Expression: Some features illustrated may not be available in Canada.

The Supreme Court of Canada has given a nice little Christmas present to Canadians concerned about freedom of expression. But the emphasis must be placed on the word little.

In a ruling yesterday, the court created a new defence against defamation suits that it termed “responsible communication.” This defence can protect defendants in defamation suits who have made factual errors in their reports or commentary as long as they can prove they took reasonable precautions to ensure their story was factually correct and that they can show publication of the story serves the public interest.

This will be added to the traditional defences of truth (i.e., you can prove in court what you said is true, often more easily said than done), various forms of privilege (you had a right to say it because, for example, you were under oath or were speaking in a Legislature), fair comment (it’s a comment, it’s fair, and it’s based truth you can prove in court), and consent (he said I could say it).

In a related ruling, the court explicitly extended protections enjoyed by the press and other traditional media to bloggers and other “new media” practitioners.

So far, so good. But while this is a minor improvement from the previous deplorable situation, it doesn’t solve the fundamental problems with defamation law in Canada, the principal purpose of which – no matter what you have been taught or what you imagine – is today to suppress legitimate criticism of powerful people and institutions.

What you’ve been told, of course, is that defamation law is there to protect the reputations of people who have been held up to ridicule or contempt by something someone has written or said that is untrue or unfair. Alas, this is not the way things really work.

This is, first, because the tort of libel on which all Canadian defamation acts are based (the protection of reputations being a provincial matter) is such a tangled skein, biased against defendants and illogical in its requirements. This means it is not really accessible to ordinary people whose reputations actually need protecting so that they can earn a living.

Rather, thanks mainly to the high cost of pursuing an action in this esoteric corner of the law, it has become the almost exclusive preserve of well-off and litigious individuals who wish to suppress legitimate criticism of their views and activities.

Second, it is because of the concept of legal personhood, which allows wealthy corporations to abuse defamation laws – created to defend the reputations of natural human beings, however imperfectly – by hiding behind the fiction they are persons too, if only in a legal sense.

This feature of the law has been hideously misused by powerful corporations to attack anyone who dares to criticize them. It happens much more frequently than you might imagine, but is rarely reported in legal journals because it is usually not necessary for these corporate bullies to actually go to court to destroy the constitutional rights of Canadian citizens. Ordinary people, after all, can’t afford to battle frivolous suits by corporations with bottomless pockets and in-house legal departments. So mostly the victims of these corporate assaults swallow their pride, surrender and quietly give up their constitutional right to free speech.

So while the Supreme Court’s ruling improves things a little, it will mainly help employees of commercial media companies with deep pockets of their own. This, of course, is why the commercial media are celebrating this ruling as if it were much more significant than it really is.

Its meaning for bloggers will remain largely theoretical, because most bloggers will remain unable to afford the costly defence necessary to battle a defamation suit by a determined plaintiff.

Unchanged by the Court’s ruling are these serious impediments to free expression:

  • The tactical playing field of the law of defamation remains heavily tilted against defendants and in favour of plaintiffs. For example, the onus remains on the defendant to disprove the plaintiff’s claims of damage, no matter how preposterous.
  • Powerful corporations continue to be able to use this law as a bludgeon to crush ordinary citizens who dare to criticize their actions, no matter how legitimately.
  • The cost of a credible defence against a defamation suit remains onerous, forcing most plaintiffs of ordinary means to forget about their supposed right to free speech.
  • The cost of an effective offense is high too, restricting the use of this tort to the powerful and well-off, who mainly use it to suppress criticism, and denying it to ordinary people, who actually have an economic need to protect their reputations.
  • The size of defamation awards remains wildly out of proportion with the true value of a human being’s reputation, let alone a wealthy corporation’s. This potential cost to defendants, of course, is another impediment to free speech.

In other words, nothing has changed to make defamation law a less effective tool for people who wish to use it to frustrate your constitutionally protected right to free expression.

This is a far cry from the United States, where in 1964 the U.S. Supreme Court ruled that there is in that country “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 U.S. Court ruled, that even unintentionally false statements about public figures must be protected if freedom of expression is to have the “breathing space” it requires to survive.

Over time, moreover, the notion of public figures has come to be defined very broadly in the United States. So U.S. citizens may strongly criticize not just public officials, but corporate leaders, religious figures and athletes as well.

The U.S. Supreme Court was profoundly correct in it’s opinion that a broad measure of this nature was necessary to protect the free expression required in a democracy. American citizens – and, arguably, the rest of the world – have benefited enormously by its intellectually courageous and groundbreaking decision in 1973.

Whether through legislation or court decisions, breathing space for free expression similar to that which exists in the United States must remain the goal for Canadians concerned about their fundamental democratic rights.

Yesterday’s Supreme Court of Canada ruling is a step in the right direction, but it is only a tiny step.

5 Comments on "Merry Christmas from the Supreme Court of Canada – sort of"

  1. David J. Climenhaga says:

    A reader, Curmudgeon-at-Large, writes:

    “It’s become fairly clear that defamation law is not the only area of legal practice that is available only to the rich. The majority of Canadians can only afford legal services when the costs can be included in some larger transaction, such as the purchase of a house.”

    “Getting back to defamation law, I am reminded on a legal conundrum. Could someone (such as, say, [NAME OF NOTORIOUSLY LITIGIOUS ORGANIZATION HERE]) bring suit against you if you called them litigious?"

    As previously noted, I am defamation-averse, so I have posted Curmudgeon's comment this way because I think there is a genuine risk that the organization he names WOULD sue, and because Blogger’s application does not allow me to edit his comment.

    The answer to his question, in my opinion, is definitely yes. Could being called litigious be cause for ridicule or contempt? Obviously it could. So the statement, prima facie, is defamatory. Could truth be used as a defence? Well, yes, if the organization had been declared by a court to be litigious in some jurisdiction, or if a history of frivolous litigation can be proved. But even so, and this goes to the heart of the argument in the foregoing piece, the fact a litigious individual or group does not have a good case is no bar to them filing a suit. The fact an individual – say, a blogger – does not have the resources to mount an effective defence against a frivolous suit determinedly pursued by a litigious plaintiff is enough to chill the criticism.

    Will Canadian courts do anything about this? Highly doubtful. Even if the Supreme Court would, the case would have to be taken there through the courts at crippling expense. Any defamation lawyer who would like to represent me pro bono on a case like this is welcome to call or email.

  2. Ti-Guy says:

    American citizens – and, arguably, the rest of the world – have benefited enormously by its intellectually courageous and groundbreaking decision in 1973.

    I'd be interested in knowing how you've come to that conclusion. I certainly haven't seen how it has empowered ordinary Americans to push back against corporate power abuse. In fact, it seems to me that it has provided Americans with only the illusion of freedom (and with it, power) to challenge this abuse; that the corporations are only too happy to let their detractors believe their opposition, when manifested solely by an exercise of freedom of speech, is all that is required to effect substantive change. That this is communicated through the corporate media that one pays for directly, or indirectly, is just an added bonus.

    As long as the challenges are never allowed to reach a level of exposure that reveals them to be public opinion that is broadly shared (something the American news media is singularly skilled at preventing), I don't believe the corporations much care what anyone says.

  3. David J. Climenhaga says:

    I can't say I can find much wrong with Ti-Guy's analysis of how criticism is suppressed and controlled in the United States, or how media operates in both countries. That said, however, in this area of free expression, Americans are ahead of us in Canada and their experience can and should be emulated. If U.S. defamation law was still based on the British model, even the inadequate and atomized level of protest heard on the Internet would have been more effectively silenced. Moreover, the fact the U.S. Internet is relatively unfettered provides an opportunity for dissidents in other nations to use that space, which may be denied to them at home. In Canada we suffer all the complaints Ti-Guy correctly identifies, as well as a defamation law that overtly allows corporations and powerful individuals to subvert supposedly constitutionally protected freedom of expression. As for my submission that the USSC was intellectually courageous in Times v. Sullivan, I think it is a given that the court, as currently constituted, would not have made the same decision.

  4. Ti-Guy says:

    I don't disagree that the US has better defamation laws, but Canada and Britain have more sophisticated means of keeping the news media responsible. And when it comes to what I consider a priority — what a critical mass of the public believes — I don't think the US has anything to teach anyone else at all.

  5. Curmudgeon-at-Large says:

    Apparently legal systems based on English common law present an opportunity for libel chill that the internet makes world-wide. See http://euobserver.com/9/29250, a story about "libel tourism", in which Eastern European underworld figures use English courts to attack those anywhere in the world who publish information on the web that the subjects would rather not see. The root of the problem is that for defamation, common-law systems place the burden of proof on the defendant, as you pointed out in this post.

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