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Defamation: Libel “chill” or historical irrelevance?

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Introduction

Over the past 300 years, the English legal system evolved a mechanism for the protection of reputation. This legal machinery was used largely by the rich and powerful to retaliate against those who challenged their integrity, honesty, and sexual practices. The legal process involved in a defamation case (whether libel or slander) became extraordinarily complicated and convoluted. It has undergone very little reform, and as a result remains a fairly obscure corner of the law, filled with ancient procedural rules and pitfalls, enormously costly and available in practical terms only to wealthy individuals, publications, and institutions.

Why not abolish this mechanism for protection of reputation altogether? Despite today’s obviously ridiculous stories in tabloid newspapers or on television “infotainment” programming, society seems to function remarkably well. If there is no apparent need for restrictions on freedom of speech, why preserve a legal means to enforce those restrictions?

Consider four examples of possible lawsuits based on defamation:

  1. Political defamation
    A cabinet minister is accused by an interviewer during a hotline radio show of having cheated a pensioner in her previous career as an accountant; the accusation is false.
  2. Commercial defamation
    A butcher is accused of selling tainted meat by a neighbour who uses a sandwich board to publicize the conflict. The claim is based on a single incident of bad meat being sold, and is therefore partially true.

    Personal defamation
    A bank teller notices a note from her supervisor left on her boss’s desk that reports a rumour that she has a criminal record for theft. This is true, but the single incident occurred 30 years earlier, when she was in an abusive relationship.

    Publication defamation
    A small publisher prepares to issue a book on a wealthy business tycoon which states (accurately) that he made his early gains through illegal insider trading. The tycoon gets wind of the impending publication and threatens the publisher with a libel suit.

We will return to these four examples later to illustrate suggested reforms to defamation law.

As an association, we take freedom of expression as a desirable starting point, and accept restrictions of it only where they are clearly warranted. In cases where manifestly false or malicious attempts are made to destroy the reputation of a well-known person, the issue arises as to whether it is more important to protect that reputation from unwarranted and baseless attacks, or to err on the side of freedom of expression. In general, there is very little room for criminal law restrictions on false statements (see R v. KeegstraR v. Zundel), and public opinion seems remarkably tolerant of vicious attacks on public figures in the media. Hopefully this reflects public recognition both that ideas are the lifeblood of a democracy, and that the criminal sanctions of the state should be used only with great reluctance on matters of the dissemination of ideas.

Our starting point in such an analysis must be the view adopted by our Association that speech and expression are fundamentally political acts. We each, as sovereigns of ourselves and as part of the democratically constituted sovereign state, have a fundamental right to expression, even if this expression consists of statements (for example) that the powers of the day are incompetent, corrupt, and should be replaced by force if necessary. We should be very reluctant to proscribe such speech, as it is an essential part of the function of society itself. This is the free speech component of our democratic society to which a commitment is essential our democratic commitment. To permit restrictions on speech because it is odious, irritating or untrue is to deny the sovereignty of the author of the idea, and this should only be tolerated where it does not encroach upon our commitment to the fundamental democratic right of the individual to participate in the exchange of ideas that we call democracy.

Some ideas are clearly less important to the democratic functions of our society, and so not automatically protected by the commitment to democracy. Such ideas and expressions tend to lie in the private realm, and have less to do with our governance of ourselves and each other, than with personal antipathies. Such ideas require a calculation of their merit to determine whether they warrant protection under our commitment to democracy. (For a fuller discussion of this distinction, see John Dixon’s “Freedom of Expression as a Fundamental Right” in The Democratic Commitment 24:3, September 1990.)

Yet there is also a conflicting interest in the field of defamation which raises the issues of privacy: if one’s personal history of crime, moral turpitude or bad judgment is put up on billboards, should there be a remedy in the courts?

The British Columbia Privacy Act provides for a remedy for such acts, but it closely resembles a defamation action, and has only been used in the courts twice, without success. Where there is no legitimate public, that is democratic, interest in a facet of the private life of a citizen, it would seem that there is still room for some kind of legal remedy for infringing that privacy and for making the individual the “subject of public contempt, hatred or ridicule”.

Any laws that provide legal remedies against ideas, and bring the weight of the judicial system to bear on the author of an idea, must be very carefully constructed to avoid suppression of idle, original, or iconoclastic thought. Such ideas are not only the lifeblood of our literature and of democratic political life, they also provide much of the entertainment in our daily lives.

The existing legal framework for control of defamatory thoughts and ideas, however stated, is now very badly outmoded. It should be overhauled in a fashion which permits free and open discussion of controversial ideas, but should probably still provide sanctions against speech which is clearly motivated by malice, defined as the spreading of false information or of information which is published with reckless disregard for its truth or falsehood. This distinction between malicious and non-malicious expressions will often be problematic, and may well wave with the political winds of the day.

This is fraught with difficulty in the arena of political affairs. Much of the current political climate is set by the limits of public tolerance for attacks (no matter bow scurrilous or silly) on one’s political opponents. Yet in a political context, to bring a defamation action would only prolong the pain, by making the complainant seem petty, legalistic, and unable to “take the heat”. Inherent delays in the legal system would also make the exercise unproductive in political terms.

That the public is so tolerant of scurrilous political speech may be a sad comment on the state of our legislature, but it suggests that in practice, the democratic commitment to freedom of speech is indeed respected in the political sphere.

On the issue of private affairs, it would appear inappropriate to require malice to be shown, as individuals will suffer the embarrassment of having their private lives paraded in public regardless of the motivations or accuracy of the information. The current definition of what is defamatory—”creating hatred contempt or ridicule in the eyes of right minded citizens”—has a Victorian ring to it, but the underlying concept of the improper use of information about an individual to put them to shame remains valid. Retaining an objective standard of what is defamatory in the realm of private information is appropriate, and there should be no requirement to demonstrate malice.

Defamation actions that succeed in the courts should be restricted to those in which the ultimate court—that of public opinion—would also consider the idea or statement to be worthy of sanctions. Given the obstacles to access to justice, those cases will be few and far between, especially when it comes to battles between public figures. Requiring malice to be shown in cases involving issues in the public realm would appear to be a good test of whether a case warrants a finding of liability and the sanctions of the courts.

This requirement would also serve as a brake on those in our society who would sanction those who say unpopular things—the “political correctness” of the past few years is hardly a new phenomenon, and will continue to exist in various guises, just as it has for much of this century in the western world. It is important that the courts not be subject to these shifting winds of intolerance. A requirement of demonstrated malice before liability can be found in matters of public interest should serve as an effective brake on the enthusiasm of judges to be seen to be up to date with the latest intellectual fashions.

What then is the appropriate role for the tort of defamation? In the absence of some legal remedy for attacks on reputation, it would appear that there would be ample opportunity for, and significant financial interest in, generating such attacks in order to sell newspapers, books, and television advertising time. Those at risk for such attacks would include political figures, entertainment figures, and the wealthy. There will always be gossip campaigns against individuals who do not fall into the above categories, but the costs of litigation place current remedies for defamation beyond their reach.

The reality of defamation actions is that they are quickly abandoned, or else result either in a retraction and apology within a few weeks, or in an enormously complicated and costly journey into the courts, pursuing a remedy that is often illusory. Winning parties will be entitled to their legal costs, but collection is often difficult, and in any event these costs rarely provide complete indemnity for the expenses of legal action. The net effect is that anyone becoming involved in a defamation action can expect either a quick apology or a tremendously expensive waste of time and money for both plaintiff and defendant.

What social value can we find for maintaining any civil action for defamation? Its only real value would appear to be in deterring malicious publication of ideas for profit or gain. Malice in this context must be restricted to situations where the idea in question is either false or has been published with reckless disregard for its truth. To see how such a limited redefinition of defamation might operate, we must examine the legal niceties in some detail.

A. Background

Defamation is a strict liability tort—which means that liability is assumed, and need not be proved. Once a statement is found to be defamatory, damages are assumed to flow from this.

The traditional definition of defamation is that it must consist of a statement which has a tendency to cause a person to be shunned or avoided, or exposed to hatred, ridicule or contempt. The standard is not subjective, but rather is that of the ’right minded citizen’.

Innuendo can also be the basis of a lawsuit, where the worlds complained of are defamatory in a sense other than their ordinary meaning. Here the plaintiff must rely on extrinsic facts to support the view than an extended meaning of the words makes them defamatory.

It is questionable whether these categories have any functional meaning in modern society, so accustomed to trash television, supermarket tabloids, and extensive attacks on political figures. If there is to be a deterrent and controlling effect through civil litigation, it must be closely restricted and focused on producing remedies where they are appropriate and a deterrent effect that is selective. Should the categories become too broad, and the proof too easy, democratic activity and the dissemination of ideas will be unduly stifled.

Al. Exemptions

Allowances for necessary reporting of information (both favourable and unfavourable) are made for reports on the legislature, the courts, and in specific circumstances such as employment references. These exemptions are described as absolute privilege, qualified privilege, and fair comment. We will deal with each of these in turn below.

A2. Damages

A “successful” defamation claim will result in an award of damages, in proportion to the injury to the reputation of the individual. If the individual is relatively unknown, of limited means, and not politically involved, the damages will be nominal, perhaps only a few dollars. This is in stark contrast to legal costs, generally at least $10,000 if the individual is self-represented, and many times that if a lawyer acts on his or her behalf.

If the individual is widely known and has a good reputation, the damages may be substantial: awards of up to $1,000,000 are known in the Anglo-Canadian legal system. These are of course extremely rare, and a more common award is roughly equivalent to the legal costs incurred by the individual.

If a defamed politician brings a successful lawsuit, the damages are unlikely to be substantial since press coverage of the case will re-establish the injured reputation. Once again, damages are unlikely to equal legal fees incurred in bringing the action.

Damages as a remedy would thus appear to be both ineffective and inequitable, since the wealthy receive large amounts of money they don’t need, while the average or poor citizen receives an award that is insufficient to put them back where they started. Even awards of costs (assuming they can be collected) are unlikely to provide anything near complete indemnity for the expenses incurred in bringing the litigation.

The net effect is that damage awards in defamation actions are a very hollow victory. Our legal system is far too slow and costly to bring about a timely and effective remedy, and most political figures will seek a remedy in the press rather than through the courts.

People who are not widely known and of limited means will not bother with the courts, as it would cost them far too much to obtain a negligible award of damages. This leaves the “effective” defamation action almost solely in the hands of the wealthy who are willing to protect their reputation at any cost.

A3. Remedies generally

The ideal remedy for most plaintiffs—excepting those who actually enjoy a legal battle—is the publication of an apology or retraction by the defendant. The great majority of threatened defamation actions end with such a retraction, at minimal expense other than wasted time to all parties.

Perhaps the best solution in terms of remedies would be to provide for retractions or apologies, combined with a complete indemnity for legal costs for the winning party. No award of damages would be made. Winning parties would be vindicated, at no cost to themselves. There would be practical problems with this approach, in that it might prove impossible to collect costs from the losing party, but the same is true of any court award of damages.

B. Possible areas of reform

B1. Definitions

The current division between libel and slander, depending upon the mode of publication, predates the electronic media, and is largely antiquated. There is no clear definition of what is libellous or slanderous, other than the objective standard of whether “the right minded citizen” considers that the allegedly defamatory statement wrongly “exposes its subject to hatred, ridicule or contempt”. While this suggests that some definition should be provided, so that authors of ideas will be able to assess their chances of being sued, it is also important to maintain flexibility in this area.

It would be foolhardy to attempt to define defamation in modern terms; the 19th century standards (which included “loss of chastity”) demonstrate how quickly these definitions become obsolete. In public affairs, a more uniform requirement that malice be shown would accommodate both authors’ need for certainty and commitment to democratic free speech.

B2. Who may sue?

It is an essential element of every defamation action that the defamatory statement should be shown to refer to the plaintiff. Where a group (e.g., the police, a real estate developer, New Democrats) is defamed, each member may sue, as may the group as a whole. This applies to associations, clubs, corporations, municipalities and labour unions.

If defamation is to be maintained as a tort, all of these entities should be able to protect their reputations. But, the more political their goals, the less useful a defamation action should be. It is important for the law to discourage frivolous lawsuits, with or without a political agenda.

B3. Defences to defamation actions

a. justification

Arguing that there was no defamation because the statement in question was true is a dangerous defence: it requires the defendant to prove clearly that the statement made was true. If it is found not to be true, then each repetition of the statement through the course of the lawsuit is considered to be a fresh publication and thus to give rise to further damages. On its face, this is clearly ridiculous in terms of encouraging freedom of expression. The only sensible option for a defendant unwilling or unable to face the costs of litigation is to print a retraction of a statement that is firmly believed to be true. “Truth” therefore goes to the highest bidder.

b. innocent dissemination v. publication

Traditionally, the state of mind of the defendant is not relevant to a finding of liability for defamation. Publishers may be found liable even though they did not realize what they were printing was potentially defamatory. The rationale behind this is obvious, since any publisher would simply plead ignorance when, for example, printing letters to the editor.

Exemptions to this rule are made for those who are a “mere mechanical distributor,” such as booksellers or newsvendors. However, this situation leads to an obvious reluctance on the part of publishers to print anything controversial, for fear of a ruinous lawsuit “libel chill”.

c. absolute privilege

Even where statements are by definition defamatory, they cannot give rise to liability where they are made in the legislature, or where they represent fair and accurate reports of events in the courts. This is most certainly one of the essential elements of a democratic society.

The British Columbia Law Reform Commission stated in 1985 that:

the media should not be deterred from reporting information of immediate public importance because of fear of liability in defamation. Granting the media special protection through statutory privilege attaching to such reports is justified by the special public service that the media perform.

This is a sound statement of democratic common sense.

d. qualified privilege

Fair and accurate reports of proceedings in the legislature are covered by qualified privilege, which means that they are protected from actions in defamation, but that protection may be destroyed by proof of malice or improper motive. This same privilege extends to those who make statements in performance of a duty (employers reporting an alleged theft, job references, medical care, and those made in professional communications or in protection of an interest). This is an important defence, as many of the important functions of our society require the honest expression of opinions on issues affecting individuals and society as a whole.

The British Columbia Law Reform Commission proposed that this category be greatly expanded to give such privilege to reports on most governmental activities, to permit a better-informed public to participate in debates and decisions on matters of importance. It also recommended that reports of private associations, public meetings, municipal and school boards, and companies be subject to qualified privilege, subject to the requirement that publication of a reasonable letter or statement of explanation or contradiction of that report be made available to any potential plaintiffs if they feel they are wronged in the report.

This would seem to be a desirable and practical approach: it encourages dissemination of accurate reports to the public as a whole, while still providing for appropriate explanations of ambiguities or inaccuracies by those originating the reports. It may also be desirable to extend this special type of qualified privilege to cover documents created by, or filed with, public institutions such as securities commissions and property registries.

A major concern with the defence of qualified privilege is that plaintiffs may face great difficulties in attempting to establish malice on the part of defendants. This is particularly true where there are multiple defendants, where the actions are politically motivated, and where indignation may verge on malice. The issue has been dealt with at length in the United States since the 1964 U.S. Supreme court decision in New York Times v. Sullivan (376 U.S. 254) held that public officials could not recover damages for a defamatory falsehood relating to his official conduct unless they proved that the statement was made with actual malice—that it was false, or made with reckless disregard of whether it was false or not.

In Canada concern has been expressed that the American rule:

leaves vulnerable the reputation of all who are or would be in public life, by depriving such people of any legal recourse from defamatory falsehoods directed against them, except in those rare cases where actual malice can be established. Such a rule would be likely to discourage honest and decent people from standing for public office. Thus the rule destroys, rather than preserves, the delicate balance between the freedom of expression and protection of reputation which … is vital to the survival of our democratic process of government (Westbank Band v. Tomot (1992) 10 C.CLT. (2d) 1(B.C.C.A)).

The court went on to say that:

We live in a time when democratic political institutions of all forms are viewed with increasing cynicism and distrust. Participation by citizens in our political process is said to decline as individuals feel increasingly remote from those controlling the governmental system that shapes their future. In such a climate there is a danger that government will grow less responsive to the governed, leading to a self perpetuating cycle which tends inexorably to destruction of the democratic system. In the face of such tendencies we need more, nor less, political debate and the fundamental importance of free expression seems obvious … that fact, however, does not mean that the reputation of public people must be sacrificed on the altar of free expression… a decision to serve the public good must not deprive a person of the protection of his or her reputation which the law is properly expected to provide (ibid.)

Despite these statements from the highest court in the province, our society as a whole appears to be leaning toward the American position that allows virtually any non-malicious comment about public figures. A reasonable compromise may be found in extending the categories of qualified privilege to cover most aspects of public activity, providing wider protection for statements about public affairs while retaining a remedy for those who are attacked maliciously.

Any limitation on completely free speech in a democratic society should aim to maximize the possible exchange of ideas while still permitting some controls to exist on speech generated by outright malice. Such speech does little to expand the choice of available ideas, but legal sanctions on such speech must be narrowly construed to prevent the suppression of ideas that could somehow be interpreted as malicious.

e. fair comment

A defence of fair comment requires the defendant to show that the words are comment, not a statement of fact. While they must be based on fact, those facts need not be set out in the publication. This defence applies only to comments on matters that are legitimately in the public interest. It covers activities such as criticism of works of art, books and public speeches, the conduct of legislatures and governments, courts, politicians, non-profit agencies, and any major business or social institution. It is important to note that this defence is available to anyone, and not just to members of the media.

The range of subjects that may be commented upon remains flexible, since the main focus is on what constitutes “fair” comment. Fair comment defence is only abolished if a plaintiff can establish malice on the part of a particular defendant. Currently, defendants are required to prove the truth of the facts upon which the comment was based.

These technical requirements as to “fairness” seem both cumbersome and largely unnecessary. It would appear sufficient that a defendant be able to state what facts the comment was based upon, and leave it at that. If the plaintiff can establish that the comment was made maliciously, then the defence would fail. This defence should be reserved for activities that the plaintiff puts out for public consumption, inviting a response from the public.

B4. Damages

There must be an overall purpose and conceptual framework for any awards of damages. Compensation of plaintiffs for injury to reputation should be restricted to nominal amounts, if any, and a published apology or retraction, or a published conclusion of the court that the plaintiff was indeed defamed improperly.

Damages for “pain and suffering” should be nominal in nature. Where defamed individuals can demonstrate that they suffered a loss of business or other loss of income due to defamation, such damages should be compensated on a reasonable basis, subject to a strong requirement that plaintiffs should mitigate all losses as soon as possible to the fullest extent possible.

B5. Punitive damages

Punitive damages should be awarded only where a defendant has published a clearly untruthful and defamatory statement with the expectation of resulting profit. Such situations will be rare. Damages should be proportionate to the extent of the publication, the expected profit of the defendant, and the financial resources of the defendant.

B6. Procedural rules

If the goal is to seek predictable outcomes to defamation actions, speedy and economical hearings, and a deterrent effect that is proportionate to the harm done, there should be trials by Judge alone with written reasons for judgment. This would provide the necessary precedents to enable parties to conclude what their chances of success will be in future lawsuits, and to predict their costs with some reliability.

Short limitation periods should be provided, so that if the lawsuit has not been commenced within six months of the publication in question, the right to bring such a lawsuit should be extinguished. In the absence of a conspiracy amongst defendants, the liability of each should be determined individually.

What would be the outcome of the four cases described above?

1. Political defamation
The claim brought by the cabinet minister could succeed under both the old rules and our proposed new ones, but the new rules would give her a full indemnity for her expenses plus a published retraction, whereas the old rules would provide a pyrrhic victory of some sum of money which would be unlikely to cover the minister’s costs. In both situations, the radio station would likely retract the allegation before a lawsuit started.

2. Commercial defamation
The butcher would have to show malice under the new rules, as quality of commercial products is an issue of public interest. If the butcher could afford to go to court he would likely win, but would be unlikely to collect anything. Under the existing law, the defendant would be ill advised to plead that the sandwich board statement was true, and would likely lose the lawsuit. The chance of the butcher ever collecting any damages would be minimal.

3. Personal defamation
This case would not likely go to court under either the existing or the proposed rules, as the costs of litigation are too high and the damages too low. Defences of truth and qualified privilege would be used and under the proposed rules the chance of the plaintiff winning damages or an apology would be much reduced as the defence of truth would be used whereas under the existing rules that would be too risky a defence.

4. Publication defamation
Insider trading is a matter of public interest, and the defence of truth could also be raised under the new rules. This would encourage the publisher to issue the book, as the tycoon would have a negligible chance of winning. Under the existing law, the defence of truth would be too risky, and qualified privilege would not apply. The tycoon would stand some chance of winning, in spite of the allegation being true. In either case, the small publisher would have to weigh the costs of a prolonged legal battle against the potential loss or profit from the book in either case, sales would be increased by the allegation of libel

Thus, the underlying problems with the use of the courts for this type of claim remain. Costs of litigation are prohibitive to most, regardless of the rules, and the chance of collecting on a judgement against anyone other than a well-financed business are small. In order to encourage freedom of speech—democratic speech by requiring that malice be shown in matters of public interest, there is a price in terms of access to justice for smaller claims. This may well be one of the costs of democracy and of the judicial system in its current form.

Summary and conclusions

The most recent major defamation case in British Columbia was that of Westbank Band of Indians v. Tomat (cited above). It arose from a dispute between two rival factions of the Westbank Indian Bank, and was based upon a press release and petition that circulated in that community. Publication beyond that community was extremely limited, and most members of the community recognized it as a political dispute.

The trial of this action took 28 days, and the legal bills would be estimated in excess of $1,000,000. The result was a damage award of $350,000 plus $50,000 of punitive damages. The matter went to the Court of Appeal, and a new trial was ordered. The entire issue went back to square one.

Obviously, this is an inefficient, expensive, and inappropriate fashion in which to deal with political disputes which get carried away and result in overenthusiastic abusive remarks about one faction or another. Canadian libel law has failed to deal with this chronic problem, and the net effect is that defamation suits by “little people” against big defendants are hopeless from the outset.

The only plaintiffs with any hope of “success” are those who are wealthy and regard protection of their reputations as something that is worthy of the expense.

They hold a very effective threat over the heads of impecunious defendants, or even those motivated by the business costs of the potential lawsuit.

More freedom of expression, rather than less, would appear to be necessary under the circumstances. Therefore, we recommend:

  1. The distinction between libel and slander should be abolished
  2. An objective, flexible approach to what is defamatory be retained.
  3. Malice must be shown before any action can succeed when the subject matter is of public interest
  4. Where truth is a defence, it should not be deemed to increase or aggravate the damages, unless the defamation has clearly been made without justification
  5. The classifications open to the defence of qualified privilege should be broadened extensively.
  6. Fair comment should be expanded to include any non-malicious statement of opinion on a matter of public interest
  7. Damages should be reduced to nominal levels, except where income loss of the plaintiff can be demonstrated and where profit on the part of the defendant warrants punitive damages.
  8. The major remedy should be a retraction or apology, which would be a complete defence to an action in defamation.