Wednesday, March 16, 2011

British Defamation Law Reform: What It Might Mean For Canada

The British government has called for a revamp of British defamation law:
"The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society," said Justice Secretary Kenneth Clarke. "In recent years though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate, and investigative journalism."
British defamation law is notable in that when suing for defamation in the British courts, the plaintiff does not have to necessarily prove that the defamation caused them damage, but instead merely that a reasonable person would think less of them after hearing or reading the libelous claim. Further, the English approach places the burden of proving that no damage has been caused on the defendant.

This differs from the American approach to defamation, which since New York Times Co. v. Sullivan in 1964 has required the plaintiff to prove damage, unless, in the case of a public figure, that there was either actual malice or reckless negligence on the part of the writer or publisher of the defamatory statement.

The result of this has been a marked preference for plaintiffs to sue (or threaten to sue) in British courts for libel where the jurisdiction was even slightly appropriate, such as when Kate Hudson sued the National Enquirer after it suggested she had an eating disorder, on the basis that the Enquirer publishes a British edition, or when an Icelandic Bank sued a Danish tabloid which criticized its tax shelter services on the basis that an English translation of the paper could be viewed in Britain.

British courts have also had a history of greater friendliness to defamation claims than other jurisdictions: not for nothing is the "McLibel case" a British one.

The Canadian approach to defamation has generally followed the British model, but Canadian courts have never been as friendly to defamatory claims as British courts have been, perhaps in part due to cultural difference, but also due to a certain willingness by Canadian courts to find defenses for the tort of defamation.

In WIC Radio v. Simpson, for example, the Supreme Court expanded the defence of fair comment (e.g., that the statement could be believed to be true by the originator) by allowing the defence to apply to statements that could be considered recognizable as opinion and which could honestly be expressed as an opinion on the facts of the case. More recently, in Grant v. Torstar Corp., the Supreme Court created the defence of "responsible communication on matters of public interest," which gave media outlets greater leeway in avoiding defamation claims by giving them a defence against uttering a defamatory statement where there was a publc interest in making the statement (in a journalistic sense) and where the publisher/producer of the statement was responsible in its reportage by accurately reporting the plaintiff's side of the story, justifiably including the defamatory statement, or other factors that would make clear that producing the statement was an act of responsible journalism.

If British defamation law is indeed revised to protect greater freedom of speech, this could certainly have repercussions on Canadian defamation law. Were the Canadian system to follow British reforms, Canada might well become one of the world's freest-speech jurisdictions, if we ultimately were to combine a looser libel standard with our existing defamation defenses. Alternately, British reform might borrow wholesale from existing Canadian defenses, leaving our system relatively untouched. Only time will tell, however.
- Christopher Bird, Toronto
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