Legal limitations arising out of private rights Civil Defamation

Cases Grant v. Torstar Corp. (2009) SCC 61 New York Times Co. v. Sullivan –In the Supreme Court of the United States, (1964) 376 U.S. 254 S. Casey Hill v. Church of Scientology –In the Surpeme Court of Canada Hunter and Swift v. Fotheringham, Maclean-Hunter –In the Supreme Court of British Columbia, (1986) Unreported Murphy v. LaMarsh –In the Supreme Court of British Columbia, (1970) 73 W.W.R. 114 Terrance McCann and the Ottawa Sun et al –In the Ontario Court of Justice, General Division, (1993) 16 O.R. (3 rd ) 672

Introduction Civil defamation Libel Slander Libel Any publication in any permanent form (including the Internet) that lowers the reputation of a person in the eyes of the community Slander Defamation for which there is no record Criminal (Defamatory) Libel – s. 298

Introduction Strict Liability No requirement on plaintiff to prove fault, negligence, or intent (mens rea) Error or unintentional libel not a defence unless defendant can prove responsible communication on a matter of public interest; i.e. quoting a source; republishing material from another source

The Plaintiff’s case In Quebec, plaintiff must prove fault, damages and relationship between fault and damage (see pp JLG) U.S. libel law Public Libel

The Plaintiff’s case Publication Identification Defamation Malice

The Plaintiff’s Case Legal Assumptions without proof Plaintiff enjoys good reputation No one has right to damage that reputation The defamatory allegations are false The plaintiff has suffered damage as a result There is no assumption of malice

The Defendant’s Case Defences Truth (Justification) Consent Fair Comment Qualified Privilege Responsible communication on a matter of public interest Apologies/Retractions not a defence

The Plaintiff’s Case Publication Libel must be in a permanent form Must be seen by at least one third person other than plaintiff and defendant Extent of publication affects damages The larger the number, the higher the damages Publication on Internet

The Plaintiff’s Case Identification Libel must be of an identifiable individual Only person libelled can sue Can’t libel large groups or classes of people Identification can be by small group Can’t libel the dead Ontario Class Proceedings Act

The Plaintiff’s Case Defamation In law and in fact judge jury

In Law – Subjective Test Whether ordinary reader would interpret the message as lowering the reputation of the plaintiff in the eyes of others in the community Allegations of criminal behaviour, sexual misconduct or impropriety, or other immoral behaviour are prima facie defamatory Context of defamatory allegation Effect on people generally, average citizens – not special-interest groups

In Fact – Objective Test Jury decides based on defences pleaded and evidence at trial Words that may be capable of being defamatory in law may not be in a particular case

The Plaintiff’s Case Defamatory Innuendo The publication on its face is correct and true but implies misconduct or wrong-doing applies to words and pictures etc Example Jane Doe doesn’t beat her husband on Sundays.

“Red Flag” Allegations Criminal conduct Sexual impropriety or other immoral behaviour “loathsome” disease Professional misconduct or incompetence in one’s trade and or business Poverty or financial irresponsibility Disgraceful or unusual behavior

Defamatory Words? Harry Smith of 100 Bly St. is a member of the mafia. Joe’s morality varies with the weather. The bespectacled elderly man, who usually wears green swimming trunks with white polka dots, and a black bathing cap, sits on the edge of the Carleton swimming pool, ogling young girls. Ben Affleck can’t act. The lawyers in the law firm of Oglethorpe and Smith are bunglers. Tom Cruise is gay. A photo of a man and a woman with the caption “lovers.” Ben Affleck is a terrible actor. Most of the time he’s either drunk or high on drugs.