A New Libel Defense In Canada; For Blogs Too

roju writes "The Globe and Mail reports that the Canadian Supreme Court has created a new defense against claims of defamation, allowing for reporting in the public interest. They specifically included bloggers as eligible, writing: '...the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.' and 'A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. ... [I]t is more accurate to refer to the new defense as responsible communication on matters of public interest.'"

Comments

This doesn't help

[bmo]

This doesn't help when you can be sued in England for blogging in Canada or anywhere else for that matter.

--
BMO

Re:This doesn't help

[phantomfive]

England is getting tired of every offended person coming to their country to try to silence their critics, and thus are considering changing their laws.

A member of the House of Lords is preparing a bill that would, among other things, require foreigners to demonstrate that they have suffered actual harm in England before they can sue there.

They don't like being known for libel tourism.

Geist's coverage

[roju]

Michael Geist also covers this, writing "This is crucial decision for all publishers both big and small. It represents a major win for freedom of expression in Canada and should remove some of the libel chill that arises far too frequently."

I wonder...

[Rivalz]

Sounds like I need to incorporate myself just for my online presence. That way when I get sued for pissing everyone off I can just close my business down. The idea's and expressions are solely that of Legally Inept Inc. a subsidiary of Betcha Can't Sue Me. Please forward all complaints to our legal department trash@inbox.com

Re:Truth as a defense?

[pclminion]

So truth as a defense doesn't count?

Nope. My wife found this out the hard way this year. She was sued for "defamatory" statements she made in a formal complaint against a board-certified professional. During the court case, which was before a jury, at the plaintiff's insistence, the issue of whether or not the statements were true was not even a topic of discussion. The only thing that mattered, to both the judge and the jury apparently, was whether my wife's comments caused damage to the plaintiff's reputation. Well, of course they did. That's why they are called "complaints." Bam, $5000 judgment against my wife. Could have been worse -- the plaintiff was asking for $75,000. Thank God our homeowners insurance had our ass. We didn't pay a dime.

I don't see why you'd need something like this

[Sycraft-fu]

I mean there really shouldn't be some special exception saying "It is ok to slander/libel someone in certain situations." No, it shouldn't be allowed. I think the US has pretty sensible libel laws. In particular, there are three defenses:

1) The truth. If what you wrote was true, no matter how damaging, it's not libel. Libel is only untrue statements. So as long as you are telling the truth you can post it for whatever reasons you like, regardless of the harm it causes and have no worry about a successful libel suit.

2) Belief that it is true. If you reasonably believe what you are writing is true, that is also a defense against libel. So if a newspaper publishes a story based on good information that turns out to be false, it isn't libel. They reasonably believed it to be true.

3) No intent to cause harm. The final defense against libel is if you didn't intend for the statements to cause harm. This is generally in the case of satire and the like. If you are writing something you know to be false, but doing so in a way as to poke fun at someone, it isn't libel.

So the only way something is libel is if it is false, you know (or reasonably should know) it is false, and you write it anyhow with the intent of causing harm to your target.

To me, seems pretty reasonable and doesn't seem like any special protections are needed.

Re:Truth as a defense?

[Idiomatick]

That was a court case gone wrong, your lawyer sucks.... Or the law wherever you are sucks a lot. In Ontario I do know that truth is absolutely a defense.

Re:Truth as a defense?

[pclminion]

The consequences of speaking the truth and criticizing someone else's unacceptable behavior should not be 10 months of agony and a payout to a person who shows a clear pattern of suing their clients exactly the way she sued my wife. You are an idiot.

Defamation law in Canada

[telso]

Lots of confusion in the comments, so here's the skinny on defamation law in Canada, taken directly from this judgment (removing citations for readability):

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: [citations]. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: [citation].) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[29] If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

[30] Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some "occasions", like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit reports, enjoy "qualified" privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: [citation]. The defences of absolute and qualified privilege reflect the fact that "common convenience and welfare of society" sometimes requires untrammelled communications: [citation]. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends.

[31] In addition to privilege, statements of opinion, a category which includes any "deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof" ([citation]), may attract the defence of fair comment. As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a "fairminded" person could honestly hold, to a requirement that it be one that "anyone could honestly have expressed" (paras. 49-51), which allows for robust debate. As Binnie J. put it, "[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones" (para. 4).

[32] Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society.

Long story short: prove someone defamed you (defamatory, towards you, published), they're presumed guilty, with onus shifting. To defend themselves, they must prove either 1) the statements were absolutely privileged (from court or parliamentary testimony or documentation); 2) the statements enjoyed qualified p