Defamation Laws

The new Canadian “responsible communication” libel defense and the American “actual malice” defense have several similarities and differences.

In Quan v. Cusson, where Constable Danno Cusson filed a libel suit against the Ottawa Citizen for publishing an article that stated he misrepresented himself at Ground Zero after 9-11 and interfered with the rescue operation. Most, but not all of the facts from the article had been proven true, and the jury found no malice on the part of the defendants, but Constable Cusson was awarded a total of $125,000. On appeal, the Court established a responsible journalism defense, but denied the defendants its protection because they had not advanced it at trial.

Grant v. Torstar involved Peter Grant who brought a libel action against Toronto Star Newspaper Limited because it published an article about a private golf course development on Peter Grant’s lakefront estate and a neighbor stating that it was “a done deal.” A lot of controversy surrounded Peter as people questioned the environmental effects of his company as well as his use of politics. At trial, the judge ruled the privilege defense based on a concept of public interest responsible journalism would not apply in these circumstances and that the jury would deliberate on the defenses of truth and fair comment. However, the jury awarded the plaintiff general aggravated and punitive damages.

The similarities of these two cases is that both set up the libel defense of responsible communication in that when “proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favor of broadening the defenses available to those who communicate facts it is in the public’s interest to know.” Thus, responsible communication would be in the defense of public interest and would apply if the publication was a matter of public interest as well as if the publisher diligently tried to verify the allegation regarding "the seriousness of the allegation, the public importance and the urgency of the matter, the status and reliability of the source, whether the plaintiff’s side of the story was sought and accurately reported, whether the inclusion of the defamatory statement was justified, whether the defamatory statement’s public interest lay int eh fact that it was made rather than its truth, and any other relevant circumstances." In other words, that laws of defamation should be modified to recognize defense of responsible communication on matters of public interest.

In New York Times v. Sullivan, L.B. Sullivan filed a libel suit against the NY Times for running an advertisement entitled “Heed Their Rising Voices” that made reference to the misconduct of the Montgomery police during several civil rights demonstrations. L.B. Sullivan claimed that the advertisement defamed him because although he was not specifically named, his position in the police department was, and the facts in the advertisement were erred.

Gertz v. Welch involves Elmer Gertz, an attorney who was helping the family of a youth who was shot and killed by a Chicago policeman to bring a civil action for damages against him. He filed a libel suit against Robert Welch, Inc. publishers of American Opinion, who published an article stating that Gertz had a criminal record and called him a “Communist fronter” who was attempting to undermine the authority of the nation’s police. This case drew a line between public persons and private persons, and rewrote the law of defamation as cited in our text on page 98.

Both cases seemed to use the defense of libel per se, in that the defamatory speech was implied and implicit, but that there was no proof of actual damages and that malice was presumed. On appeal, the courts found that in these cases, the Constitution extended to defamatory speech that criticized public officials and public figures on matters concerning their official conduct and that legal action “which encroached on freedom of utterance under the guise of punishing Libel” when pertaining to public figures or officials wouldn’t be tolerated unless the plaintiff assumed the burden of proof to show that the defamation was communicated with “actual malice.” Actual malice being that the communicator knew the message was false or recklessly disregarded his or her obligation to discover truth and publish the truth. This test is known as the Times-Sullivan or actual-malice rule. The constitution prohibits a public official from recovering damages for speech, defamatory, false, or not, that relates to his official conduct unless he can prove that the statement was made with “actual malice”.

The similarities between the US “actual malice” and Canada “responsible communication” libel defenses include that both countries find that matters pertaining to public interest should be protected more, despite the facts and as long as the speech was not done with “actual malice” (US) or was done “responsibly” (Canada). However, they do have several very important differences between the elements of the laws that are noteworthy. In the United States, the burden of proof is on the plaintiff to prove that the defamatory speech was done with “actual malice” – that the communicator knew the message was false and recklessly disregarded his or her obligation to discover truth and publish the truth. Also, as in the case of NYC v. Sullivan, a public official cannot recover damages for defamatory speech which relates to his official conduct unless he can prove the statement was made with actual malice. However, this does not apply to the Canadian case, Quan v. Cusson. In other words, in the United States, the defamatory speech is “true until proven false” so to speak.

In Canada, the burden of proof lies with the defendant, in that the defamatory speech is “false until proven true” by the defendant, and the defendant needs to be able to provide sufficient evidence and proof of their claims. However, this is where the “responsible communication” defense helps the defendant more, in that the defendant can state that they were responsible journalists and that the facts were true to the best of their knowledge and that this was a matter of public interests. One example is the case of Quan v. Cusson, if the public interest test is met, which it did, the Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. The defendants’ liability therefore hinges on whether they were “diligent in trying to verify the allegations prior to publication, and it will be for the jury at a new trial to decide whether the articles met this standard of responsibility.”

In Grant v. Torstar, the jury deliberated on the defense of truth and fair comment in that the defendant had to prove their defamatory speech to be true. In Gertz v. Welch, a law was drawn between public and private persons and changed the defamation laws, but that the burden of proof was on Gertz in proving that the defamatory speech was false. This difference creates a difference in the way people approach free speech. In Canada, people would be more cautious rather than freely express their ideas. This ends up keeping important public matters that are of public interest, from the public. In the United States, people more freely speak out, but it also allows hate speech to many times go unpunished.

I wouldn’t side with the Canadian or the British because I find that the their libel laws are actually a bit too limiting on journalism, and as we saw in the article, “British Libel Laws: Cutting Off Crucial Information,”
where it states that the law seems to be too oppressive in that journalists no longer want to cover subjects like how terrorism was and is financed because the price is too high to pay and the court favors the plaintiffs in libel suits. In the article, “Cracking the Spine of Libel,” we read that one British journalist, Simon Singh is being sued for libel by the British Chiropractic Association for an article that he wrote that was published in a paper. If he wins his case, he still would have had to put his career on hold for two years and would have cost him about $41,500 because he is unlikely to recover all his costs. If he loses, it will cost him about $800,000. Singh comments that “fighting and winning is bad enough; fighting and losing is catastrophic.” The article begs the question, “Most writers won’t take the risk, and who can blame them?” The English libel laws favor the claimant or the person who says they have been defamed. The range of defenses is more limited and the burden of proof is on the defendant to prove that the defamatory statement is true, and is otherwise presumed false. This is the same for the Canadian libel laws. This leads to, as “British Libel Laws” describes it, the “cutting off [of] the flow of important information about terrorism to readers in England and elsewhere,” which takes away from the principle of the freedom of speech as well as violates the UDHR Article 19 right to the freedom of opinion and expression, as well as to seek, receive, and impart information through any media. It scares people into wanting to speak out and express their opinions, as we read of SLAPPS cases (strategic lawsuits against public participation).

I think that America’s personal libel laws to suppress free speech were the best out of the three countries' laws (the United States, Canada, and Britain). The United States seemed to best balance the Universal Declaration of Human Rights for free speech and for reputation. I think this because the Universal Declaration of Human Rights gives rights to freedom of speech, freedom of expression, freedom of religion, and freedom of opinion as well as to seek, receive, and impart information through any media. (Articles 18 and 19).

I think that Alexander Meiklejohn's theory that ideas must be expressed freely, without fear of reprisal (p. 436). Under this philosophy, the British and Canadian defamatory speech laws would not hold because journalists have begun to not report or write certain stories for fear of punishment, despite if it had been in the public's best interest. Meiklejohn comments that any effort to suppress ideas violates the First Amendment.In this, Meiklejohn's private v. political speech theory would apply in that private speech has Fifth Amendment protection of due process, but is not entirely protected. Political speech, however, should be give absolute protection and is privileged and may not be abridged. Mieklejohn states that political speech is given an "unlimited guarantee of the freedom of public discussion, which is given by the First Amendment" which extends to the freedom of religion, of the press, of assembly, of petition for redress of grievances, and "places all these alike beyond the reach of legislation limitation, beyond even the due process of law. With regard to them, Congress has no negative powers whatever."

I would also apply J.S. Mill's philosophies when supporting America's personal libel laws, that the freedom of speech is justified because (1) the censored opinion may be true and the accepted opinion may be in error; (2) even truth needs to be challenged and tested, else it becomes a "dead dogma"; and (3) there is probably some truth in all opinions(p. 13). In this, I think that although there may be some "false facts" in some articles, there is also some truth in them and that can't be punished. Quoting Mill, "If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind" (P. 13). You can't censor one reporter's opinion on an issue just as much as you can't censor the entire issue, especially in the matter of public interest.

America also balances the suppression of free speech with the rights given by the UDHR for free speech and reputation the best when looking back on the history of free speech. Cases of defamation pass the clear-and-present danger test, they don't incite immediate or imminent harm. However, they definitely offend and don't always work with the citizen respect theory (J.S. Mill), but as we've seen, these theories don't stand up in court as almost any speech may offend or disrespect someone in the world. While defamation may be considered "fighting words" and "worthless" speech, I think that these laws were created to protect people from being just outwardly and unneccesarily insulted. Cases such as Quan v. Cusson where the opinions expressed were based on mostly true facts and were about a public official and in the interest of the public should be protected. Would the general public sue all of the papers that initially published articles claiming Cusson as a hero since facts later came out that he wasn't given permission to be at Ground Zero, etc.? If burning crosses and hanging nooses is allowed, and some hate speech is allowed, then to suppress ideas and opinions that are of public interest would lead to a much too slippery of a slope -- not simply in terms of hate speech and other frowned-upon types of speech, but of all speech that expresses ideas, opinions, and other expressions. Thus, I find that America got it right because although we do have some problems with our speech laws, to scare journalists and reporters, etc. into publishing things that are of public interest for fear of punishment is in opposition of everything that the UDHR represents, as well as our own First Amendment (consider medical journals and not wanting to publish a medical article for fear of having to prove every single thing in it and then having it later be proven untrue ten years down the line).