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.