Monday, February 11, 2008

 

Libel law plainly infringes the Charter guarantee of free expression

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This may be more than you ever wanted to know about Libel and Slander. But I did promise yesterday to share some of the information I had found. There are a few surprises. - BC Mary.
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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, writes media lawyer Dan Burnett in "Canada should reform its antiquated libel laws".

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). [The Lawyers Weekly. October 27, 2006] The author, Dan Burnett of Owen Bird Law Corporation in Vancouver, practises primarily media and defamation law.
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It's time to reform Canadian libel law
by Jeffrey Shallit

Environment Minister Tony Clement is suing Liberal leader Dalton McGuinty for remarks he made in a CBC radio interview. Jacques Parizeau and Lucien Bouchard are suing investment adviser Richard Lafferty for his comments in a 1993 financial newsletter. In 1997, former Prime Minister Brian Mulroney sued the Federal Government, asking $50 million in damages, over a letter naming him as a suspect in the Airbus case.

What gives these powerful politicians the ability to shut down criticism and criminal investigations? The answer is Canadian libel law.

Under the current legal regime, you can be sued for anything you say about another person that damages their reputation. If sued, the onus is on you to prove the truth of your statements; the fact that you genuinely believed them to be true is not good enough. Even truth is not an absolute defence --- if the court finds you told the truth but your intent was malicious, you might lose anyway. Canadian libel law is so draconian that people come from all over the world to file libel suits in Ontario.

The impact on freedom of expression, a core value of the Charter of Rights and Freedoms, is severe. There's even a term for it: "libel chill". Libel chill means that people are afraid to criticize powerful people who might bankrupt them with a costly suit. It means that commentators have to think twice before needling public figures --- as cartoonist Josh Beutel learned when he was sued by controversial New Brunswick school teacher Malcolm Ross. Ever wonder why there's so little investigative journalism in Canada? The reason is simple: libel chill.

Stringent libel laws may have made sense five hundred years ago, when British royalty wanted to stop the nobility from dueling by giving them a legal remedy against character slurs. But we don't live in the time of Henry VII any longer. Debate on political issues can't be robust and wide-open if the threat of a libel suit hangs over you.

Today, if someone tries to ruin your reputation, there are many avenues of redress. You can hold a news conference, take out an ad on radio or television, or set up an Internet web site to tell your side of the story. These methods are cheaper than a lawyer's fees and certainly safer than a duel.

It's time for Canadian libel law to be brought in line with 21st century realities. A good first step would be to reverse the burden of proof in lawsuits involving public figures: the plaintiff, not the defendant, must prove the statements in question are false. Furthermore, let's exempt statements of personal opinion or belief, and force the plaintiff to prove that the statements were made with malicious intent.

If we don't act, the likely result is millions of taxpayer dollars going to fund the legal bills of rich politicians who know how to dish out criticism, but can't take it.
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From: Dial-a-Law, available at www.cba.org/bc

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia.

Defamation: libel and slander

Defamation is false communication about a person that tends to hurts the person's reputation. The communication must be made to other people, not just to the person it's about. It can be spoken or written, or it can be a gesture.

The law protects your reputation against defamation. If someone defames you, you can sue the person for money to compensate you for your damaged reputation. You have to sue in Supreme Court, not Provincial Court - refer to English language script 432 , called “Our Court System and Solving Disputes.” You don’t have to prove that the people who heard or read the defamation actually believed it. Even if they knew it was false, it can still be defamation. Courts realize that lies can take on a life of their own.

The law doesn't protect you from a personal insult or a remark that injures only your pride; it protects reputation, not feelings. So if someone calls you a lazy slob, you might be hurt, but you probably don't have a good reason to sue. If he goes on to say you cheat in your business dealings, you probably do have a good reason to sue, as long as he says it to someone else, not just to you. If he says it only to you, you can't sue because he has not hurt your reputation.

Defamation can be a crime under the Criminal Code , but only rarely. This script is about law suits in civil defamation. If someone has defamed you, you may also be able to sue for a violation of your privacy under the provincial Privacy Act . Further, section 7 of the BC Human Rights Code prohibits another type of defamation, namely, a discriminatory publication. For more information on that, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. Or see its website at www.bchrt.bc.ca . Also, refer to English language script 236 .

What is libel?
Libel is the type of defamation with a permanent record, like a newspaper, a letter, an e-mail, a picture, or a radio or TV broadcast. If you can prove that someone libeled you, and that person does not have a good defence (see the section on defences below), then a court will presume that you suffered damages and award you money to compensate for your damaged reputation. But going to Supreme Court is expensive and even if you win, you may not get as much as it costs you to sue. In deciding on assumed damages, the Court will consider your position in the community. For example, if you are a professional, damages may be higher.

What is slander?
Slander is the type of defamation with no permanent record. Normally it's a spoken statement. It can also be a hand gesture or something similar. The law treats slander differently than libel: with slander, you have to prove you suffered damages, in the form of financial loss, to get compensation. But with libel, the law presumes you suffered damages. For example, say that Bill told John you were a cheat, and then John refused to do business with you because of that. You sue Bill and prove that you lost business with John because of what Bill said. Bill would have to compensate you for the loss of John's business, but not for the general damage to your reputation. It can be very difficult to prove this sort of financial loss. That's why most slander cases never go to court.

But in the following four examples, a slander lawsuit may succeed without you proving financial loss. Even though there's no permanent record of the slander, the law will presume damages, as if there were libel, if someone:
accuses you of a crime (unless they made the accusation to the police)
accuses you of having a contagious disease
makes negative remarks about you in your trade or business
accuses you of adultery

What about the right to free speech?
The law protects a person's reputation but this protection can restrict other rights, such as the right to free speech. The law tries to balance these competing interests. Sometimes, even though someone made a defamatory statement that hurt a person's reputation, the law considers other interests more important. The law allows the following defences for a person who makes a defamatory statement.

What are the defences to a defamation lawsuit?
If someone sues for defamation, the most common defences are:
* truth (known in law as "justification")
* absolute privilege
* qualified privilege
* fair comment

1. Truth or justification
A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence if you sue them for defamation.

2. Absolute privilege
There are two main examples of this defence: statements made as evidence at a trial, and statements made in Parliament. This defence also allows the fair and accurate reporting of those statements in the media, such as newspaper reports of a trial. People must be able to speak freely in our justice and political systems without worrying about being sued.

3. Qualified privilege
Say a former employee of yours gave your name to an employer as a reference and that employer calls you for a reference. You say, "Well, frankly, I found that that employee caused morale problems." As long as you act in good faith and without malice, the defense of qualified privilege protects you if the former employee sues you for defamation. You gave your honest opinion and the caller had a legitimate interest in hearing it.

4. Fair comment
We all are free to comment – even harshly – about issues of public interest, as long as our comments are honest, based on fact, and not malicious. For example, a newspaper columnist may write that a Member of Parliament (an MP) says he supports equality and equal rights, but he opposes same-sex marriages. The columnist writes that the MP is hypocritical. If the MP sues the columnist for defamation, the columnist has the defence of fair comment.

Media articles that accurately report what was said at public meetings are also privileged, unless the meeting was not of public concern and the report was not for public benefit.

What effect does an apology have?
A newspaper or a TV or radio station that publishes or broadcasts a libel can limit the amount of the damages they may have to pay by publishing or broadcasting an apology right away.

Summary
The law of defamation protects your reputation against false statements. If a person makes a false statement to someone and it hurts your reputation, you can sue the person who made the false statement for damages. But because of other competing rights in our society, such as free speech and fair comment, you will not always win.

[updated September 2007]

Dial-A-Law© is a library of legal information that is available:
by phone, as recorded scripts, and in writing, on the CBA BC Branch website.

To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC.

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Canadian Libel and Slander Actions (the book)
by Roger D. McConchie, David A. Potts

Published: May 2004
ISBN: 1-55221-056-1
ISBN-13:978-155221-056-7
$75.00

Canadian Libel and Slander Actions is a comprehensive, step-by-step guide to litigating a libel or slander action from the initial meeting with the client to the jury charge. It surveys more than 500 leading cases in Canada and elsewhere, providing expert insight into judicial interpretation of concepts such as express malice, fair comment, qualified and absolute privilege, justification and consent. It includes separate chapters on pleadings, discovery, evidence, damages, appeals, and Charter issues.

The book is written by two of Canada's most experienced and respected practitioners of defamation and media-related law. It is destined to be a classic in the field.

Quotes

"This is now the best book on libel in the market. It is better than the English texts and a wonderful aid to counsel at trial or to a solicitor giving an opinion on libel. It is completely up-to-date and is a sheer pleasure and undiluted delight to read. It is better than a great mystery." - Julian Porter, Q.C.

"On many subject areas this new text is, quite simply, the best published treatment of Canadian defamation law. This is true of such key subjects as parties, apology, express malice, pleading, particulars, evidence at trial and jury trial. ... This book attains reliable scholarship on some pretty tricky subjects. It deserves to be consulted first." - David Sutherland in The Advocate, July 2005


About the Author

Roger D. McConchie
Member of the Bars of British Columbia and Alberta

Roger D. McConchie is a civil litigator in Vancouver with a practice focused on defamation, privacy, media, trade libel and Internet law. He has advised and represented domestic and international clients at all levels of the court system for more than 25 years. He has written extensively and spoken frequently on the subjects of libel and slander to academic, journalism, and professional audiences and his comments about legal developments are often reported in the news media.

[... and Roger McConchie appears, now and then, in BC Supreme Court when Madam Justice Elizabeth Bennett calls pre-trial hearings on the Basi-Virk-Basi / BCRail Case.]

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Comments:
There's no question that our libel laws need to be amended somewhat - there does need to be some consequence for printing outright falsehoods, but the guilty-until-proved-innocent nature of our libel laws is a serious anachronism in this day and age, as is the malicious libel statute.
But this statement Ever wonder why there's so little investigative journalism in Canada? The reason is simple: libel chill. gives our friends in the media too much credit.
Between the lazy asses, the deadweight and the outright biased (see Baldrey, Keith), the press in this province especially has simply abdicated its responsibility for investigating government malfeasance. Libel laws are no more stringent now than they were in the '90s, but reporters then seemed much more willing to expose what they saw as government corruption (see Clark, Glen and deck, backyard).
 
I know there is no "First Amendment" in the Canadian Charter. However, there is the guarantee/right to FREE expression, with the usual caveats like yelling fire in a crowded theater or engendering hate - both of which are crimes in their own right.

Therefore it seems to simple, idealistic me that it would be a good time for someone with the financial ability or a group that can raise the necessary funds to pursue a Charter Challenge to this unacceptable practice of gagging the people through "libel chill."

It seems that the AG is afraid to do anything about the polygamists at Bountiful due to fear that they might win under the Charter and the protections it gives to superstition/religion. It seems to me that if the Charter MAY protect Polygamy (and the social problems it causes, especially the "lost boys" and lack of educational opportunity in general for the children) it MUST protect FREE SPEECH.

Of course someone has to go up against a Justice system whose fairness is currently in question to establish this fact.

I was reading in MacLeans recently that only the rich and those on Welfare really have access to the courts. But I doubt that means someone on Welfare could retain counsel to pursue a Charter Challenge? Maybe some lawyers would work pro bono for such an important principle, then again perhaps the existing situation is too much of a pork barrel to eliminate.
 
" If a person makes a false statement to someone and it hurts your reputation, you can sue the person who made the false statement for damages. But because of other competing rights in our society, such as free speech and fair comment, you will not always win."

Of course winning isn't even necessarily the goal if a plaintiff can bury the defendant in paper and drain their more limited resources with legal expenses. In this case the plaintiff with even a loser case wins by shutting up the offending voice.
 
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