The Canadian Media Lawyers Association has submitted comments to the Joint Committee considering the draft Defamation Bill (the Submission can be read here) While Canadian and English defamation law is similar in many ways, Canada has gone in its own direction on some of the issues raised in the Bill, such as the defence of fair comment, responsible communication, and an explicit recognition of the reportage defence. These differences highlight some of the concerns raised by the Bill. Further, Canada’s recent defamation jurisprudence is now, finally, grappling with reaching a better balance between protection of reputation and freedom of expression under the Canadian Charter of Rights and Freedoms, which may be of particular relevance in England as its courts also strive to achieve an appropriate balance between these competing constitutional rights under the Human Rights Act.
Highlights of the CMLA’s Submission are summarized below.
Clause 1 – Substantial Harm
The CMLA supports the adoption of a substantial harm test, which will deter trivial claims, and allow new opportunities to have weak claims dismissed at an early stage. It is time to discard the low test that words need only “tend” to lower one’s reputation, and focus on the actual reputation of the plaintiff. Taken together, the presumption of damage and the restriction on evidence of the plaintiff’s actual reputation have often favoured a plaintiff with a lofty pre-publication reputation often far removed from his or her true standing in the community. This in turn presents a risk that the verdict will compensate the plaintiff far beyond the actual injury sustained. A change to require that the defamation substantially lower the plaintiff’s reputation will achieve a more appropriate balance between the competing rights of reputation and free expression.
Clause 2 – Responsible Publication in the Public Interest
The Canadian experience is quite informative here. The CMLA urges a broad defence applying to all communication, as recognized by the Supreme Court in Grant v. Torstar,, and which may be seen as broader than “publication”.
The CMLA urges a clear and broad definition of “public interest”: “Public interest shall be construed broadly having regard to the content and context of the entire publication.” The commentary suggesting that the statement complained of “make a contribution to the public interest element of the publication” inappropriately focuses the inquiry on the statement, whereas the definition of public interest urged by the CMLA will help to ensure that the focus of the inquiry is not on the specific statement complained of, but looks more broadly at the subject matter of the article as a whole
The CMLA raises concern about including the reference to “tone”, which is vague and subjective, and not including important factors such as “urgency”, respect for editorial judgment and discretion, the appropriate use of confidential sources, and that it should not always be necessary to approach a plaintiff. If the Reynolds factors are to be the basis for the statutory defence, then more of the substance of them should be included to ensure that the robustness of the defence is not diminished.
The CMLA believes that the defence is solely a matter for a judge. Confusion has arisen about whether there is any role for a jury to consider disputed issues of fact, as occurred in Jameel, and which was a factor in the trial judgment being overturned. Although a majority of the Supreme Court of Canada ruled that the defence, once public interest has been determined, is a question of fact for the jury, the CMLA supports the view of Abella J. (dissenting) in Grant v. Torstar Corp., that the defence is appropriately considered, in its entirety, by a judge. This is soundly based on the fact that the application of the defence involves a balancing of competing rights, not merely an application of legal principles to a course of conduct that, for example, may have fallen below an accepted standard of care. Applying the defence is far different that determining negligence or guilt.
The formulation of the reportage defence in the draft Bill is too narrow. insofar as it requires an “accurate and impartial account of a dispute”. The degree of accuracy in the reporting of allegations ought not to be higher than the standard required in the truth defence, and so “substantially accurate” ought to be sufficient. The inclusion of “impartial” should be reconsidered, as it invites a court to give unnecessary scrutiny to whether one side was given more prominence than the other.
Clause 3 – Truth
The proposed section is consistent with the policy of simplifying the law and appropriately broadens the defence from the common law which requires, in Canada, that a defendant prove that a defamatory imputation is true in substance and in fact. However, the defence should ensure that a claimant is not able to succeed by only pleading one imputation that arises from the publication where the defendant is not able to prove it, but other defamatory meanings are proven to be true. Consideration should be given to expanding the defence to apply when the defendant proves the truth of any meaning reasonably borne by the publication, and where the unproven allegation results in no further harm to the plaintiff’s reputation. The CMLA also supports placing the onus of proving falsity on the plaintiff where the action is brought by a corporation or other entity that is not an individual.
Clause 4 – Honest Opinion
The CMLA objects to the requirement under s. 4(5) that the opinion at issue was, in fact, subjectively held by the defendant. As long as the court may decide an opinion’s meaning is different from the one intended by the author, as permitted at common law, a defendant may be unable to rely on this defence when it is most needed. Here again, a recent Supreme Court of Canada decision should be considered. In WIC Radio Ltd. v. Simpson, the defendant did not have a subjective honest belief in the meaning found by the Court, but he clearly deserved the benefit of the defence in expressing his own strong opinions. In reformulating the defence, the Supreme Court made it clear that only an objective test would avoid this problem and meet society’s needs, noting that “defamation proceedings will have reached a troubling level of technicality if the protection afforded by the defence of fair comment to freedom of expression (“the very life blood of our freedom”) is made to depend on whether or not the speaker is prepared to swear to an honest belief in something he does not believe he ever said.”
The CMLA also believes that “malice” should play no role in determining the availability of a “comment” defence. After all, as Lord Nicholls pointed out, why should someone’s intention affect a comment’s usefulness to public debate? The Committee should also reconsider whether the requirement that comment be on a matter of “public interest” should be maintained.
Clause 5: Privilege
The CMLA urges more simplicity and clarity here, to provide more effective guidance to publishers, and eliminate redundancy, repetition and the potential for missing new tribunals or new occasions as they arise that would fit within the principle of public access to public information, and which ought to be covered by the privilege. There should no longer be a difference between contemporaneous and non-contemporaneous reports, not should there be special protection for reporting court proceedings over other public proceedings. Malice should be discarded as unnecessary and inappropriate given the requirement that a report be fair and accurate. The CMLA opposes the introduction of a right of reply.
Clause 6: Single publication rule
The Duke of Brunswick haunts Canada too, and so the CMLA supports the introduction of a single publication rule. However, one aspect of Clause 6 which requires additional definition is the exemption for “materially different” publications. As currently drafted it is uncertain whether an article is “materially different” when, for example, a web publication is moved to an archive or database of past articles; new technologies (for example, the ability to view it on a mobile reader) permit access to the same article through a different lens; or there are references to the article by hyperlink, either in a third party article or on a “past stories” list of links accompanying fresh articles. In all these cases, the publisher has not altered the article and has not re-published some materially different article repeating any allegedly defamatory portions. A provision which explicitly excludes archives or databases, hyperlinks or access through new technologies from the definition of “materially different” should therefore be added.
Clause 7: Jurisdiction – “Libel tourism”
Canada too has seen its share of libel tourism cases (e.g, Bangoura v. Washington Post and Burke v. NYP Holdings, Inc. However, in most cases Canadian courts have achieved an appropriate result by applying a “real and substantial connection” test, based on principles of order, fairness and jurisdictional restraint that consider (1) the connection between the plaintiff’s claim (i.e., the substance of the action) and the jurisdiction, and (2) the connections between the defendant and the jurisdiction.
The CMLA supports the inclusion of the proposed requirement that “England and Wales [be] clearly the most appropriate place in which to bring an action in respect of a statement” as an appropriate test to curb the English courts practice of taking libel cases over which it has little interest.
The application of the Canadian real and substantial connection test to internet libel is currently reserved by the Supreme Court of Canada in Breeden v. Black, involving allegedly defamatory statements about Conrad Black’s conduct in running Hollinger International Inc., an American corporation, posted on the Internet by the company in New York, and republished by American, British and Canadian press. There, the Court has been asked to consider the reality that defamation actions largely focus on the conduct of the defendants and the subject matter of the libel, whereas the lower courts focused on the historic, but unhelpful, view that the tort of defamation occurs where publication takes place. In the age of the internet, publication occurs everywhere and so place of publication is not an appropriate basis on which to assume jurisdiction. Drawing from the Canadian approach and the need to avoid a publication-based test, the section may be further clarified by, for example, including the words “having regard to the substance and subject-matter of the action” before the words “England and Wales”.
Clause 8: Jury trial
The CMLA supports the removal of the presumption in favour of trial by jury. Canadian provinces are not consistent in their approach to jury trials. Quebec has no civil jury trials, some provinces require juries for defamation cases unless the parties agree, while in most provinces, a jury trial only occurs if a party requests it. For the reasons identified in the draft Bill and Consultation, including complexity (both procedural and substantive) and cost, as well as the increased need to balance competing constitutional values, a presumption is inappropriate. The division of roles is complex and could also benefit from legislative clarity as the CMLA submits that it is inappropriate to have a jury weigh competing constitutional values – a question of law that should be left to judges.
The CMLA urges review of secondary liability issues in an online world. Those who provide a forum for the expression of others, be they web hosting companies or bloggers whose sites permit reader comments, will often not have the resources to withstand a concerted “libel notice” attack, and will censor as an economic imperative. Public discussion suffers. Immunizing from liability those who merely provide the means by which third parties can publish information is the best solution, as is the case under s. 230 of the American Communications Decency Act. It forces claimants to sue actual authors and does not permit them to pursue secondary providers, either for their deep pockets or, where the provider is a small player, to create chill. While s.1 of the Defamation Act 1996 codifies the common law defence of innocent dissemination, the defence is lost once the ISP has actual knowledge of the posting through notice, and leaves the statement up at its peril This is unsatisfactory, in favouring reputation over free speech simply due to notice, A provision akin to s. 230 of the Communications Decency Act would also align laws globally. For Facebook or Twitter to be immune in the USA but face potential liability in the UK would merely invite forum shopping and conflicting results between jurisdictions.