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Canadian defamation law refers to defamation law as it stands in both common law and civil law jurisdictions in Canada. As with most Commonwealth jurisdictions, Canada follows English law on defamation issues (except in the province of Quebec where private law is derived from French civil law).
At common law, defamation covers any communication that tends to lower the reputation of the subject in the minds of ordinary members of the public. [1] In particular, to establish prima facie defamation, the plaintiff needs to establish three things:
Once prima facie defamation has been established, the defendant may present defences.
Truth (also referred to as justification) is an absolute defence to defamation in all common law provinces. [2]
Fair comment refers to any opinion fairly made on a matter of public interest. [2] The onus is on the person raising the defence to establish that the defamatory material constituted a statement of opinion rather than fact. To establish that the comment was fair, the defendant must also prove, on an objective basis, that the defamatory opinion was one which a person could have honestly expressed based on the proven facts. [3]
There are certain occasions under the common law where the public interest in candid and unrestricted speech trumps the interest in the protection of reputation, and a defamatory statement that is neither true nor a fair comment can be shielded from liability. [3] Qualified privilege arises when a person has a legal or moral duty to convey information to a person with a legitimate interest in it, and does so without malicious intention. It also protects the reporting of a public tribunal's proceedings. [2]
The uttering of defamatory statements in certain contexts is protected by absolute privilege. The breadth of absolute privilege includes testimony before a judicial or quasi-judicial institution, as well all speech in Parliament and provincial legislatures. Since absolute privilege is an absolute defence, even malicious motives cannot invalidate it. [3]
Anyone who publishes anything on a matter of public interest is shielded from liability if they exercised responsible diligence in researching and reporting on it. [2]
A defendant who distributed defamatory material without knowing that it was defamatory, and expeditiously took action to remove it upon learning of its defamatory nature, can rely on the defence of innocent dissemination. [4] However to succeed, the person invoking defence must also not have acted negligently in the dissemination. [5]
Communications made with the express or implied consent of the plaintiff are protected from defamation action. [2]
In stark contrast to the US, Canadian libel law has been slow to change[ citation needed ]. In Hill v. Church of Scientology of Toronto the Supreme Court of Canada reviewed the relationship of the common law of defamation and the Charter . The Court rejected the actual malice test outlined in the U.S. Supreme Court decision New York Times Co. v. Sullivan , citing criticism of it not only in the United States but in other countries as well. The Court held that the Charter guarantee of freedom of expression did not require any significant changes to the common law of libel. Very controversially[ according to whom? ], it was held that there was no evidence of libel chill in Canada.
2006-2011 saw significant developments in Canadian jurisprudence, with many important issues being clarified and the law changing generally in the direction of that occurring in the US and elsewhere in the Commonwealth:
Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a "public figure", as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence. [12]
Most commentators[ who? ] took this as a sign that the Supreme Court would continue to expand latitude for political and public affairs comment, and that judges were encouraged to interpret common law defences and process abuse broadly enough to ensure that comment on public interest matters was not inhibited unduly by looming lawsuits.[ citation needed ]
Once a claim has been made out the defendant may avail themself to a defence of justification (the truth), fair comment, responsible communication, or privilege. Publishers of defamatory comments may also use the defence of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.[ citation needed ]
Another common tactic in political libel cases is the filing of a strategic lawsuit against public participation ("SLAPP"). Analyses of SLAPP tactics and suggested reforms to civil procedures and legislation have been released by the Ontario Attorney-General, [13] the Uniform Law Conference of Canada, [14] individual academics [15] [16] and the British Columbia Civil Liberties Association. [17] [18] [19]
An approach increasingly common in Canadian courts is to contest jurisdiction or publication, as the courts [6] have consistently required affidavits of proof of publication within the province where the libel is alleged.[ citation needed ] In Éditions Écosociété Inc. v. Banro Corp., [20] interveners made extensive argument [18] against assuming jurisdiction even when there were very clearly copies distributed and read, on the grounds that this imposed too much of a defence burden.
Also commonly employed are extra-legal approaches including the so-called "scorched earth" defence wherein, by way of justification, every embarrassing fact in the plaintiff's entire history is publicly exposed, along with those of personal friends and associates, in an attempt to counter libel chill with a similar fear of being totally exposed. Such tactics can backfire seriously however if a powerful defendant such as a mass media organization is perceived as abusing its access to the public, sometimes resulting in large awards. [21] Such tactics are also sometimes employed in other kinds of suits.[ citation needed ]
While few defamation cases go to trial, because of the deterrence value of threatened litigation, [22] there can be negative consequences arising from the trial itself. Canadian defamation law permits broad latitude in argument and exempts, with absolute privilege, comment made by way of argument, even if the arguments or positions advanced are noxious, intimidating or astonishing, or amusing enough to be quoted widely in the press (true or not).[ citation needed ] Some noted Canadian lawyers have advised that every possible alternative to litigation should be employed by a client genuinely fearful of reputation loss, before filing suit, simply because the "scorched earth" tactic has become so common. [22] If defendants have a reason to resist, such as preserving freedom of political speech, the likelihood of negative publicity is magnified. The infamous McLibel case is often cited as a warning against spending vast sums and ending up with bad publicity and an uncollectible judgment. [22]
The Civil Code of Quebec has different parameters for liability which the Supreme Court of Canada applies in appeals from Quebec.
In Quebec, defamation was originally grounded in the law inherited from France. After Quebec, then called New France, became part of the British Empire, the French civil law was preserved. However, by the mid-nineteenth century, judges in what by then had come to be called Lower Canada held that principles of freedom of expression inherent in the unwritten British Constitution over-rode French civil law in matters of public interest, and incorporated various defenses of the English common law, such as the defense of fair comment, into the local law. Such references to British law became more problematic in the Twentieth Century, with some judges and academics arguing that the basic principles of the civil law gave rise to similar defenses without need to refer to English case law or principle. [23]
The Civil Code of Quebec does not have specific provisions relating to an action in defamation. Therefore, the general rules of extra-contractual responsibility established by article 1457 of the Civil Code of Quebec apply: [24]
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.
To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Therefore, communicating false information is not, in itself, a wrongful act. [25]
In the case of Bou Malhab v. Diffusion Métromédia CMR inc., [26] the Court ruled that Quebec law exempted broadly racist comments by someone with a reputation for making same, and that accordingly MP-and-radio-host André Arthur had no liability for comments against Quebec City cabdrivers. [27] It stated flatly that racism was not a matter to be debated or decided in courts, at least not in Quebec. Quebec's anti-SLAPP law further exempts political and public issue comment almost entirely from liability, an approach that is broadly advocated (see SLAPP studies above) to be emulated in common law jurisdictions.
In 1994, the Court of Appeal of Quebec held that defamation in Quebec must be governed by a reasonableness standard, as opposed to the strict liability standard that is applicable in the English common law; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true. [6] However, in upholding the "responsible communication" defense in Grant v. Torstar, the Supreme Court of Canada also flatly rejected the strict liability standard in common law jurisdictions as well.
Defamation as a tort does not infringe the freedom of expression guarantee under the Canadian Charter of Rights and Freedoms . [28] [29] Defamatory libel is equally valid as a criminal offence under the Criminal Code . [30]
In general, Canadian defamation judgements against Americans are not collectible in the United States under the SPEECH Act, and have to be re-proven in an American court in the state where the defendant resides. [ citation needed ]
Defamation, at a first approximation, is any form of communication that can injure a third party's reputation. This can include all modes of human-understandable communications: gestures, images, signs, words. It is not necessarily restricted to making assertions that are falsifiable, and can extend to concepts that are more abstract than reputation – like dignity and honour. For a communication to be considered defamatory, it must be conveyed to someone other than the defamed. Depending on the permanence or transience of the communication medium, defamation may be distinguished between libel and slander. It is treated as a civil wrong, as a criminal offence, or both. The exact definition of defamation and related acts, as well as the ways they are dealt with, can vary greatly between countries and jurisdictions; for example, whether they constitute crimes or not, to what extent insults and opinions are included in addition to allegations of facts, to what extent proving the alleged facts is a valid defence.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Strategic lawsuits against public participation, or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
Hill v Church of Scientology of Toronto February 20, 1995- July 20, 1995. 2 S.C.R. 1130 was a libel case against the Church of Scientology, in which the Supreme Court of Canada interpreted Ontario's libel law in relation to the Canadian Charter of Rights and Freedoms.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for defamation. The decision held that if a plaintiff in a defamation lawsuit is a public official or candidate for public office, not only must they prove the normal elements of defamation—publication of a false defamatory statement to a third party—they must also prove that the statement was made with "actual malice", meaning the defendant either knew the statement was false or recklessly disregarded whether it might be false. New York Times Co. v. Sullivan is frequently ranked as one of the greatest Supreme Court decisions of the modern era.
A public interest defence is a defence in law that allows a defendant who disclosed classified or protected information to avoid criminal or civil liability by establishing that the public interest in disclosure of the information outweighs the public interest in nondisclosure.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), was a landmark decision of the US Supreme Court establishing the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.
Barrett v. Rosenthal, 40 Cal.4th 33 (2006), was a California Supreme Court case concerning online defamation. The case resolved a defamation claim brought by Stephen Barrett, Terry Polevoy, and attorney Christopher Grell against Ilena Rosenthal and several others. Barrett and others alleged that the defendants had republished libelous information about them on the internet. In a unanimous decision, the court held that Rosenthal was a "user of interactive computer services" and therefore immune from liability under Section 230 of the Communications Decency Act.
Fair comment is a legal term for a common law defense in defamation cases. It is referred to as honest comment in some countries.
Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.
A person who is found to have published a defamatory statement may evoke a defence of innocent dissemination, which absolves them of liability provided that they had no knowledge of the defamatory nature of the statement, and that their failure to detect the defamatory content was not due to negligence. The defence, sometimes also known as "mechanical distributor", is of concern to Internet Service Providers because of their potential liability for defamatory material posted by their subscribers.
Modern libel and slander laws in many countries are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as the Statute of Gloucester in the reign of Edward I (1272–1307). The law of libel emerged during the reign of James I (1603–1625) under Attorney General Edward Coke who started a series of libel prosecutions. Scholars frequently attribute strict English defamation law to James I's outlawing of duelling. From that time, both the criminal and civil remedies have been found in full operation.
The origins of the United States' defamation laws pre-date the American Revolution; one influential case in 1734 involved John Peter Zenger and established precedent that "The Truth" is an absolute defense against charges of libel. Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the U.S. Supreme Court failed to use it to rule on libel cases. This left libel laws, based upon the traditional "Common Law" of defamation inherited from the English legal system, mixed across the states. The 1964 case New York Times Co. v. Sullivan, however, radically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only when they could prove the media outlet in question knew either that the information was wholly and patently false or that it was published "with reckless disregard of whether it was false or not". Later Supreme Court cases barred strict liability for libel and forbade libel claims for statements that are so ridiculous as to be obviously facetious. Recent cases have added precedent on defamation law and the Internet.
Grant v Torstar Corp, [2009] 3 S.C.R. 640, 2009 SCC 61, is a 2009 Supreme Court of Canada decision on the defences to the tort of defamation. The Supreme Court ruled that the law of defamation should give way to the rights of a party to speak on matters of public interest, provided the party exercises a certain level of responsibility in verifying the potentially defamatory facts. This decision recognizes a defence of responsible communication on matters of public interest.
Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.
Astley v Verdun, 2011 ONSC 3651, is a leading defamation decision released by Ontario Superior Court of Justice. The case was publicized for the amount of damages awarded to the plaintiff, and the permanent injunction ordered against the defendant.
The Defamation Act 2013 is an Act of the Parliament of the United Kingdom, which reformed English defamation law on issues of the right to freedom of expression and the protection of reputation. It also comprised a response to perceptions that the law as it stood was giving rise to libel tourism and other inappropriate claims.
AI Enterprises Ltd v Bram Enterprises Ltd, 2014 SCC 12 was a unanimous decision of the Supreme Court of Canada that standardized Canadian jurisprudence with respect to the economic tort of unlawful means.
Peracomo Inc v TELUS Communications Co, 2014 SCC 29 is a decision of the Supreme Court of Canada concerning the law of marine insurance, which also has international impact.
In Australia, defamation refers to the body of law that aims to protect individuals, groups, and entities from false or damaging statements that may cause harm to their reputation or standing in society. Australian defamation law is defined through a combination of common law and statutory law.
