A. Introduction

The interest of persons in protecting their good reputations was recognized early in the development of the common law and it continues to receive strong protection under the tort of defamation. This is in marked contrast to the response of tort law to most other intangible personal interests. Tort law has been very slow, for example, in developing remedies for breach of privacy, harassment, and emotional distress, and it has "passed" on the issue of discrimination. There are a number of reasons why reputation is one of the few [Note 1: Battery, assault, and private nuisance protect dignitary interests to some degree.] dignitary interests that has received special protection. Some are historical. The invention of the printing press prompted the development in the common law of strong criminal and civil laws to combat seditious and blasphemous libel, [Note 2: At common law, defamation was actionable as libel (written defamation) and slander (verbal defamation). The extent to which this dichotomy remains in the Canadian law of defamation is dealt with later in this chapter.] which was perceived as a serious threat to the public order and to the Crown. [Note 3: J.G. Fleming, An Introduction to the Law of Torts, 2d ed. (Oxford: Oxford University Press, 1985) at 196. Libel continues to be a crime in Canada: see Criminal Code, R.S.C. 1985, c. C-46, ss. 296-300.] The high value placed on reputation by the English elite classes and the desire to minimize violence, particularly by duelling, as a means of defending one's honour were also factors. Canadian judges have maintained the high priority that has traditionally been given to the protection of reputation. This is explained in part by the pivotal role of reputation in the achievement and maintenance of personal status, prestige, and power, by the sensitivity of judges to the importance of personal reputation in their own professional careers, by the extensive economic damage that can be generated by an attack on a person's reputation, by the power of modern systems of mass communication to disseminate defamatory statements to vast numbers of persons, and by the need to encourage persons of integrity to enter and continue in public service. There is indeed little debate in Canada about the value of protecting the reputation of its citizens. Yet there is a growing awareness of, and sensitivity to, the fact that the protection of reputation adversely affects the competing interest in free speech, an interest that is also highly valued in the common law and is enshrined in the Charter of Rights and Freedoms. Freedom of speech guards against oppressive and abusive governmental actions, protects the free exchange and testing of political ideas, enhances the efficient operation of the marketplace, supports a flourishing artistic community, and maximizes the flow of information essential for individual, social, and political decision making. Traditionally, defamation law has tended to favour the protection of reputation at the expense of both the public's interest in free speech and a free media. In recent times, this has been called into question and it has been argued that the balance drawn by defamation between the competing values of individual reputation and free speech is in need of some readjustment in favour of the latter. To date there has, however, been little change in conventional principles.

CHAPTER 7, DEFAMATION

	B. THE GENERAL	FRAMEWORK OF THE TORT OF
		DEFAMATION

The tort of defamation balances the interest of individuals in their reputation with the public interest in free and unfettered speech in an unusual way. The courts have chosen a low threshold for the establishment by the plaintiff of a prima facie cause of action in defamation. Any communication that would cause the plaintiff to lose respect or esteem in the eyes of others is likely to be held to be defamatory. Consequently, few cases of defamation are fought over whether or not the defendant's words are defamatory. In itself, this would, of course, be an intolerable restriction of free speech. The daily newspapers, television programs, radio talk shows, political discourse, and the casual conversations of Canadians contain many statements that impair the reputation of others and diminish the esteem in which persons are held by others. The balance in favour of free speech is restored by a number of defences. These defences are designed to permit the vigorous exchange of information, ideas, criticism, and views that are essential in a modern democracy. One or more of the defences is usually central to most defamation litigation and they are pivotal in drawing an appropriate balance between the competing values of reputation and free speech. Yet this framework, to some degree, loads the dice in favour of the plaintiff and the protection of reputation because the defendant carries the burden of proving some justification or privilege to legitimize his defamatory statement.

It may also be noted that defamation is a difficult and technical area of the Canadian law of torts. In part, this is due to the immense diversity of speakers, meanings, and contexts of spoken and written words and the difficulty of drawing an appropriate balance between reputation and free speech, and in part it is due to the early entrenchment of some legal principles that do not operate easily or well in modern conditions, the interplay among ancient common law principles, reforming provincial legislation, [Note 4: All Canadian provinces have Defamation Acts: see Alberta Defamation Act, R.S.A 1980, c. D-6; British Columbia Libel and Slander Act, R.S.B.C. 1996, c. 263; Manitoba The Defamation Act, R.S.M. 1987, c. D20; New Brunswick Defamation Act, R.S.N.B. 1973 c. D-5; Newfoundland Defamation Act, R.S.N. 1990 c. D-3; Nova Scotia Defamation Act, R.S.N.S. 1989, c. 122; Ontario Libel and Slander Act, R.S.O. 1990, c. L.12; Prince Edward Island Defamation Act, R.S.P.E.I. 1988, c. D-5; Saskatchewan The Libel and Slander Act, R.S.S. 1978, c. L-14; Northwest Territories Defamation Act, R.S.N.W.T. 1988, c. D-1; and Yukon Territories Defamation Act, R.S.Y. 1986, c. 41. These statutes operate as a gloss on fundamental common law principles making relatively modest reforms. Their more important contributions include the abolition or modification of the distinction between libel and slander, the introduction of some special defences and protections in favour of media defendants, and some procedural innovations.] rules of procedure, and the complex division of tasks between judge and jury. Only the general principles, concepts, and themes of defamation law are canvassed here. [Note 5: The niceties of defamation law can be pursued at a variety of levels. The general treatises on tort law, including L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) and A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997), provide an excellent introduction. A monograph by J.S. Williams, The Law of Libel and Slander in Canada, 2d ed. (Toronto: Butterworths, 1988) provides a more detailed account. The most detailed and authoritative text is R. Brown, The Law of Defamation in Canada, 2d ed. (Scarborough, Ont.: Carswell, 1994).]

CHAPTER 7, DEFAMATION

C. THE ELEMENTS OF THE CAUSE OF ACTION

1) A Defamatory Statement

A defamatory statement is one that reduces the esteem or respect in which the plaintiff is held by others in the community. The test for defamation is an objective one. It is sufficient to prove that the statement would have the effect of lowering esteem or respect for the person in the minds of persons variously described as "right-thinking members of society" [Note 6: Sim v. Stretch, [1936] 2 All E.R. 1237 (H.L.) at 1240, Lord Atkin.] or "reasonable or ordinary members of the public." [Note 7: Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97 at 106 (C.A.), Abella J.A.] There is no need to prove that the statement was false or that there was any actual loss of esteem by another individual. It is no defence that those who heard the defamatory statement did not, in fact, think less of the plaintiff or that they knew the statement to be untrue or did not believe it. This lessens the plaintiff's burden of proof by dispensing with the need to bring evidence about who heard the statement, who believed it, and who had knowledge of its untruth. These questions may be relevant in the assessment of damages but not in the determination of liability.

Liability in defamation is strict. If the statement is found to be defamatory, it is no excuse that the defendant did not intend to defame the plaintiff or that reasonable care was taken to ascertain its truth. It is also no defence that the defendant was unaware of the defamatory meaning of the words he used or that the defendant did not intend the words to refer to the plaintiff. Nor is it a defence that the defendant merely repeated what he had been told by a reliable and authoritative source.

The concept of a defamatory statement extends beyond oral or written words to include movies, cartoons, drawings, billboards, and photographs. Indeed, any communication that would lead ordinary Canadian citizens to think less of the plaintiff is defamatory. [Note 8: No action in defamation can, however, be brought to protect the reputation of deceased persons.] Defamatory statements may include allegations of dishonourable conduct such as dishonesty, malingering, fraud or criminal activity, disparaging remarks about a person's character, integrity, competence in his profession or trade or fitness for public office, allegations of ties to disreputable organizations, and allegations that cause a person to be shunned, ridiculed, hated, pitied, or held in contempt, such as allegations of racism, venereal disease, poverty, and immorality. Allegations that the plaintiff broke any of the ten commandments or committed any of the deadly sins are also defamatory. "[A]lmost all uncomplimentary comment is defamatory." [Note 9: 1 Klar, above note 5 at 557.]

Defamatory statements must, however, be distinguished from statements of abuse and blasphemous statements made in anger. Such statements may be distressing and annoying and they may be embarrassing when they are heard by third persons but they are not normally perceived as being damaging to the plaintiff's reputation.

One of the tests of a defamatory statement is whether or not the statement tends to lower the plaintiff in the eyes of the "right-thinking members of society." Occasionally this has led courts to take a very idealistic view of societal attitudes. In one case, for example, it was held not to be defamatory to allege that a member of a golf club informed the police of the presence of illegal gambling machines on the club's premises. [Note 10: Byrne v. Deane, [1937] 1 K.B. 818 (C.A.).] The allegation certainly lowered the plaintiff in the esteem of fellow club members, particularly those who enjoyed gambling, but the Court took the lofty view that no "right-thinking" person would think less of a person for informing the police of illegal activities. Most courts, however, use the more generous standard of the ordinary person, which promotes decision making that is more reflective of the typical Canadian citizen and actual societal attitudes. The ordinary person test is more compatible with the conventional wisdom that it is defamatory to allege that a person is the survivor of incest or sexual assault, that a person has cancer, or that a person is gay or a lesbian, albeit that there is no reason to think less of such a person. Defamation law deals with statements that do, in fact, tend to lower the reputation of people in the estimation of ordinary people, not with how people ought to react or with the idealized norms of political and social correctness.

It is increasingly difficult to formulate the views and attitudes of the ordinary Canadian citizen in our diverse and multicultural society. Consequently, statements that tend to lower a person in the estimation of members of a segment of society may be defamatory. It may be defamatory, for example, to allege that a member of a religious community has broken dietary laws or has received forbidden medical treatment that has lowered her in the estimation of the members of that community. The plaintiff must, however, be lowered in the eyes of members of a respectable segment of society. An allegation of a failure to commit a sufficient number of crimes may diminish a person's esteem among gang members or among a criminal underclass but no action for defamation is available to protect antisocial or criminal repute.

Normally, the courts assess the natural and ordinary meaning of words in determining their defamatory nature. Consideration may also be given to evidence of slang or colloquial meanings that may not be immediately apparent to everyone. As well, there are situations where apparently innocent words can, by the introduction of evidence of extrinsic facts, be shown to have a defamatory meaning. This is known as a true innuendo. For example, to say that Jones is paid well to play football is an apparently innocent statement. It may even suggest that Jones is a good football player. However, if evidence is adduced to show that Jones plays in a university conference that prohibits the payment of players, the statement is shown to allege wrongdoing and dishonesty on his part. The proof of the extrinsic facts translates the apparently innocent words into words with a clear defamatory content. [Note 11: See, for example, Tolley v. J.S. Fry & Sons Ltd., [1931] A.C. 333 (H.L.).]