Freedom of Expression vs Protection of reputation

Freedom of Expression and Protection of Reputation

Freedom of expression and its relationship to the protection of reputation has been subject to an assiduous and judicious balancing over the course of this Court’s jurisprudential history. The Court recognizes the importance of freedom of expression as the cornerstone of a pluralistic democracy, this Court has also recognized that freedom of expression is not absolute — “one limitation on free expression is the law of defamation, which protects a person’s reputation from unjustified assault.” The right to free expression does not confer a licence to ruin reputations and values, therefore, are not without countervailing considerations.

Once a prima facie showing of defamation has been made, the words complained of are presumed to be false. To succeed on the defence of justification, “a defendant must adduce evidence showing that the statement was substantially true”. The burden on the defendant is to prove the substantial truth of the ‘“sting’, or main thrust, of the defamation”. In other words, “The defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true”.

An occasion of qualified privilege exists if a person making a communication has “an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”. Importantly, “qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself”. Where the occasion is shown to be privileged, “the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff”. However, the privilege is qualified in the sense that it can be defeated. This can occur particularly in two situations: where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded. The qualified privilege may be defeated “when the limits of the duty or interest have been exceeded”. Now, malice is an alternative way to defeat the defence of qualified privilege.

Malice is not limited to an actual, express motive to speak dishonestly. Instead, it can be established by “reckless disregard for the truth”. Notably, an ostensibly honestly held belief may still be spoken recklessly and the privilege defeated if the belief was “arrived at without reasonable grounds”. “The more serious the allegation in issue, the more weight a court will give to a failure by the defendant to verify it prior to publication as evidence of malice, in the sense of indifference to the truth”. In case of lawyers are “duty-bound” to undertake a “reasonable investigation as to the correctness” of a defamatory statement, and “actions which might be characterized as careless behaviour in a layperson could well become reckless behaviour in a lawyer”. Malice is determined by examining the “state of mind and motives of the defendant at the time of publication”

As a general rule, “a person is responsible only for his or her own defamatory publications, and not for their repetition by others”. There is an exception where the “republication is the natural and probable result of the original publication”.

General damages are presumed in defamations actions, and this alone is sufficient to constitute harm. However, the magnitude of the harm will be important in assessing whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. General damages in the nominal sense will ordinarily not be sufficient for this purpose. In addition, reputational harm is eminently relevant to the harm inquiry. Indeed, “reputation is one of the most valuable assets a person or a business can possess”. The common law jurisprudence has repeatedly emphasized the weighty importance that reputation ought to be given. Certainly, “a good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws”.

The goal of the defamation legislation is to ensure that freedom of expression on matters of public interest is liberated from an aspic of fear over the costs and uncertainty of defending against a lawsuit. The purpose of free expression is as below:

(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

BIBLIOGRAPHY

Brown, Donald J. M., with the assistance of David Fairlie. Civil Appeals. Toronto: Thomson Reuters, 2019 (loose‑leaf updated December 2019, release 4).

Brown, Raymond E. Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. Toronto: Thomson Reuters, 2019 (loose‑leaf updated 2020, release 2).

David Rolph- Defamation Law 1st Edition, Thomson Reuters, AUSTRALIA 2015

Downard, Peter A. The Law of Libel in Canada, 4th ed. Toronto: LexisNexis, 2018.

Gatley on Libel and Slander Mainwork & Supplement. Richard Parkes (Editor), Patrick Milmo QC (Editor), W. V. H. Rogers (Editor).Sweet & Maxwell 2010.

Matthew Collins. The Law of Defamation and the Internet. Oxford 2011

Ontario. Ministry of Finance. Ontario Automobile Insurance Dispute Resolution System Review: Final Report. Toronto, 2014.

Ontario. Ministry of the Attorney General. Anti‑Slapp Advisory Panel: Report to the Attorney General. Toronto, 2010.

Young, Hilary. “Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs” (2013), 46 U.B.C. L. Rev. 529.