google.yahoo.com FOLLOWING ARTICLE HAS APPEARED IN THE RECORD May 22, 2002
henrykeyserlingk.bravepages.com
Everything you wanted to know
about defamation
" 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." Honorable Justice Cory, Supreme Court of Canada, 1995
The purpose of defamation law is simple. It is meant to protect citizens from unjustified attacks on their reputation. The key corollary is that the law provides the right to sue those who say or publish false and malicious comments. This does not mean that the law has succeeded in eradicating defamatory statements. One only has to consider how often reputations are attacked in the scandal tabloids as well as on the Internet.
Ordinary people who are attacked unfairly rarely sue for defamation and not only because they are often unaware of their rights. One major consideration is the high legal costs. Court cases, especially those involving rich opponents, can drag on for years, particularly when judgments are appealed.
While there are those who sue at the drop of the hat to deter criticism, others who have deep enough pockets to pursue cases to the end, do their very best to avoid legal recourse. They prefer to ignore defamatory statements with contempt rather than confront the type of publicity, which is often associated with high profile trials. Meanwhile, responsible publishers who can't afford to fight, much less lose a libel case against a wealthy or powerful public figure often bend backwards to eradicate anything in an article that might lead to a legal action. The result is that those who require an unblemished reputation to make a comfortable living or to enhance their political careers are the most likely plaintiffs. Lawyers, doctors and stockbrokers are a good example. All it takes in many instances is a whiff of a bad reputation to impede their earning power.
Differences between defamation, slander and libel. Although libel law in both Canada and the United States originates from English Common Law, each province and state has its own legislation and case law.
The term defamation encompasses both libel and slander. When the defamatory attack is only spoken or made by gestures, it is referred to as slander. In all provinces, if the defamatory statement is in some written form, such as a newspaper or letter, it is deemed to be published and thus to constitute libel. Despite the far-reaching applications, most libel cases involve newspapers, press agencies and radio or television stations.
Applicable laws
The Quebec Charter of Human Rights and Freedoms specifically recognizes that every person has a right to the safeguard of his dignity, honor and reputation. The same recognition appears in the Civil Code of Procedure. While the vast majority of libel cases are civil, the rare ones end up before the criminal courts where the final outcome can result in a jail sentence. Our Criminal Code provides that anyone who publishes a defamatory libel that he knows is false, commits a crime and is punishable for a term of imprisonment of up to five years. It also defines defamatory libel as any "matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published." What proof is required in civil cases Although in civil cases, defamation does not have to be intentional or malicious to attract liability, the statement must tend to lower the subject to hatred, contempt or ridicule. To determine whether a statement is defamatory, our courts look at its plain and ordinary meaning and try to determine how the average reasonable person might interpret it. In doing so, they take into consideration all of the circumstances of the case, including any reasonable implications and innuendoes the words may bear, the context in which the words were used, the audience to whom they were published and the manner in which they were presented. Some of the available defenses
Whenever a defamation suit is taken, the natural reaction is to focus on the statement itself. However, equally important is whether the defendant can justify the offending statement. The perfect defense against an action for libel is to show that the defamatory statement is true. Pure opinion on matters of public concern is also a defense against libel mainly because it is not provably true or false. On the other hand, if the opinion includes or implies a defamatory fact, it can still expose the author to a libel suit.
Journalists often say things about public figures and public institutions, which they naturally prefer not being said. In this respect it would be difficult to imagine how any democracy could exist without the freedom to put forward opinions. However, while a journalist is entitled to make "fair comment " on matters of public interest, the rule of thumb is that the fair comment must reflect an honestly held opinion based on proven facts and not be motivated by malice. A recent example of fair comment was covered in the judgment involving former MNA Yves Michaud, who recently lost a $15,000 defamation lawsuit against a McGill professor. The latter had qualified Michaud's remarks about Jews as "anti-Semitic " during a Radio -Canada interview. In dismissing Michaud's claim, the judge ruled that what the professor said was "fair comment in terms of the previous remarks made by the plaintiff." While the judge considered his comments as being severe toward Michaud, they weren't defamatory. In addition, some defamatory statements are protected by an absolute privilege, meaning that in certain circumstances the interest in communicating a statement outweighs the interest in protecting a reputation. For example, parliamentarians speak under parliamentary privilege. Their speeches are protected by the privilege, which is a complete defense in law. The same defense applies to what is said in the legislative assembly or in a courtroom.
I have postponed the final segment, entitled "The price of defamation" to June. The Town of Brome Lake recently issued a notice of motion in view of closing a section of Darrah road; a subject covered in previous columns, and has called a public consultation meeting before the next council meeting.
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