Why do plaintiffs outside Canada bring libel suits against non-Canadian defendants such as the New York Post and the Washington Post in our courts? The answer is that they likely have good legal advisers who correctly tell them that Canadian libel laws favour plaintiffs. For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.
Libel law developed in an ancient era which we would today consider backward, tyrannical and repressive. It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established. In Law of Defamation in Canada, Professor Brown notes that the common law of defamation has been described by scholars and judges as “artificial and archaic” and characterized by “absurdities”, “irrationality”, and “minute and barren distinctions” (p. 1-3).
While social values and legal concepts have evolved dramatically of the past 200 years, the common law of libel in Canada remains startlingly unchanged.
The Americans inherited the same common law of libel from England that Canada did, but American courts concluded that the law had to be reformed to protect free speech. In cases involving matters of public interest, the plaintiffs now bear the onus of proving falsehood, fault and damage, and statements of opinion are immune from liability. (See Gertz v. Welch, 418 U.S. 323, Milkovich v. Lorain Journal Co., 497 U.S. 1, New York Times v. Sullivan, 376 U.S. 254.)
For those who prefer British and Commonwealth role models, it is noteworthy that in the past dozen years or so, the highest courts in England, Australia and New Zealand have all recognized that the traditional law of libel fails to adequately protect free speech, and they have all issued decisions which begin to right the balance. Every one, that is, except Canada.
The trend began in Australia, with the landmark cases of Theophanous v. The Herald and Weekly Times Ltd. (1994), 124 Aust. L.R. 1 (H.C.) and Lange v. Australian Broadcasting (1997) 145 A.L.R. 96 (H.C.A.). In Theophanous, the court declared that under traditional common law “the balance is tilted too far against free communication.” (p. 20). The cases established a new privilege for political discussion. The privilege developed in those cases has made its way into a new 2006 uniform Defamation Act in Australia. Among other things, the new Act refreshingly declares that one of its objects is to ensure free speech is not unduly hindered.
The English House of Lords took up the challenge in Reynolds v. Times Newspaper,  2 A.C. 127 where the Law Lords chose to recognize a new test for a case-by-case privilege for publications which, though otherwise actionable, dealt with a matter of public concern in a manner which was reasonable and balanced in all the circumstances. Even as this article was being written, the House of Lords released its decision in Jameel v. Wall Street Journal  UKHL 44 emphasizing that the new defence is to be applied flexibly to protect and encourage important journalism (see Randy Pepper and Lawren Murray’s article on page 14).
In New Zealand, defamation law has been modernized by a series of statutory reforms to their Defamation Act, and by the landmark decision of Lange v. Atkinson  3 NZLR 385, establishing a qualified privilege for non-reckless statements about political figures.
However, in Hill v. Church of Scientology of Toronto  S.C.J. No. 64, Justice Peter Cory, for the Supreme Court of Canada, stated, “I simply cannot see that the law of defamation is unduly restrictive or inhibiting”. Against the common law and statutory reforms which have occurred elsewhere, that sentiment seems out of step. Given that many of the Commonwealth developments occurred after Hill, it is interesting to ponder whether the Supreme Court would reach the same conclusion today.
Why should we care if Canada has more restrictive libel laws than elsewhere? One reason is that libel law, by attaching punitive consequences to expression, plainly infringes the Charter guarantee of free expression, and it becomes difficult to justify under s. 1 when other “free and democratic societies” have concluded that the traditional common law requires reform. A more pragmatic reason is that Internet publication by media outlets opens the door wide to forum shopping, raising concerns that Canada will become a haven for libel plaintiffs who likely would not succeed in their more natural forum.
Mostly, we should be concerned about the state of our libel laws because freedom of speech – including the pain it sometimes causes – is the means by which we discuss, debate and grow as a society. The clash of ideas is at the heart of our adversarial justice system and our democracy. As the poet John Milton put it, “...there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making.” Areopagitica (1644).
Dan Burnett of Owen Bird Law Corporation in Vancouver practises primarily media and defamation law.
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