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Re-thinking the common law of defamation : striking a new balance between freedom of expression and the… Bayer, Carolin Anne 2001

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RE-THINKING THE COMMON LAW OF DEFAMATION: STRIKING A NEW BALANCE BETWEEN FREEDOM OF EXPRESSION AND THE PROTECTION OF THE INDIVIDUAL'S REPUTATION by CAROLIN A N N E BAYER Ref. jur., Johannes Gutenberg Universitat Mainz, 2000 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE F A C U L T Y OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA August 2001 © Carolin Anne Bayer In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. department of jgruOhj ^ The University of British Columbia Vancouver, Canada Date DE-6 (2/88) A B S T R A C T Reputational interests are protected against defamatory and injurious statements by the c o m m o n law o f defamation, w h i c h permits the targeted individual to recover damages for the injury to his reputation. A t the same time, this body o f c o m m o n law sets limits to the constitutional right to free expression o f the person who made the penalized communication. However , since s.32(l) o f the Canadian Charter of Rights and Freedoms - according to the Supreme Court o f Canada -restricts the Charter's application to the actions o f legislative, executive and administrative branches o f government, the Charter w i l l be at best a bit player i n defamation litigation governed b y c o m m o n law rule. T h i s thesis deals wi th the tension between promoting free speech and protecting a person's reputation, i.e. with the questions whether the c o m m o n law o f defamation has achieved the correct balance between the protection o f the individual's reputation and freedom o f expression, or whether it needs to be m o d i f i e d i n order to better accord with the Charter. A n important component o f this thesis is its review o f the decision o f Hill v. Church of Scientology, where the Supreme Court o f Canada addressed the question o f whether defamation law needs to be reconsidered in light o f the Charter protection o f free expression, and found the balance struck b y the current law to be appropriate. A critical look at this decision, and more generally at the law o f defamation itself, particularly its presumptions o f falsity, malice and damages, w i l l reveal the problems with the c o m m o n law's resistance to making any major allowance for free expression. ii The author will argue that the Charter should apply to the common law in the same way as it applies to statutory law and that defamation law in particular would, in all probability, not survive the test under s.l of the Charter, concerning the justification of a limitation to a fundamental right. It will be concluded that the common law of defamation needs to be modified, i.e. that it must accord significantly more weight to freedom of expression in order to be consistent with the Charter. Insofar as the extent of such modification is concerned, the author will propose first of all to give the element of fault a more significant role in the common law of defamation. In addition, she will argue that the common law presumptions should be abolished. In sum, the author's reform proposal requires the plaintiff to prove not only that the words he complains of are defamatory, identify him and are published to a third person, but also that they are false, did indeed cause damage to his reputation and that the defendant acted with fault, i.e. intentionally or negligently, when publishing the defamatory falsehoods. i i i T A B L E O F C O N T E N T S Abstract i i Table o f Contents iv I N T R O D U C T I O N 1 C H A P T E R 1: T h e t w o v a l u e s i n P h i l o s o p h i c a l T e r m s A . Phi losophical Foundat ion o f Freedom o f Expression 6 I. T h e A r g u m e n t f rom D e m o c r a c y 7 II. Truth D i s c o v e r y 14 III. F r e e d o m o f Expression and Individuality 19 I V . F i n a l Remarks 25 B . T h e Significance o f an Individual's Reputation 25 I. Histor ical Protection o f Reputation 26 II. V a l u e and Importance o f Reputation 28 1. Digni tary V a l u e and Privacy 28 2. E c o n o m i c V a l u e 31 3. Further V a l u e s 32 III. F i n a l Remarks 33 C H A P T E R 2: T h e p r e - C h a r t e r L a w o f D e f a m a t i o n A . Historical Development o f the L a w o f Defamation 34 B . T h e Current L a w o f Defamat ion 38 I. T h e General Framework o f the L a w o f Defamation 38 II. T h e D e f a m a t i o n A c t i o n 39 1. A Defamatory Statement 39 2. Reference to the Plaintiff: Identification 42 3. Publicat ion. . . 43 III. Defences 45 1. Justification 46 2. Privilege 48 a) Absolute Privilege 48 b) Q u a l i f i e d Privilege 51 3. Fair C o m m e n t 58 4. Consent, A p o l o g y and Retraction 61 iv C H A P T E R 3: F r e e d o m o f E x p r e s s i o n a n d the C h a r t e r A . Introduction o f the Charter 63 I. Histor ical Context 63 II. A p p l i c a t i o n o f the Charter 65 B . Structure o f s.2(b) A n a l y s i s 68 I. T h e Scope o f F r e e d o m o f Expression 68 1. M e a n i n g o f Expression 68 2. T h e V i o l e n c e - E x c e p t i o n 72 II. L imi ta t ion o f F r e e d o m o f Expression 73 III. Justification o f the L i m i t under s . l o f the Charter 75 1. 'Prescribed b y L a w ' 78 2. Pressing and Substantial Purpose 79 3. Proportionality Stage 81 a) Rationale Connect ion 82 b) M i n i m u m Impairment 82 c) Proportionate Effect 85 I V . 'Indirect' A p p l i c a t i o n o f the Charter 88 C H A P T E R 4: T h e t w o C o m p e t i n g V a l u e s i n the G e r m a n J u r i s d i c t i o n A . T h e V a l u e s at Issue 91 I. F r e e d o m o f Express ion 91 II. T h e Individual's Reputation 93 B . Constitutional R e v i e w with respect to the V i o l a t i o n o f Bas ic Rights 97 I. T h e Constitutional Complaint 97 II. Hor izonta l Effect o f the Basic Rights 98 III. A r t i c l e 5 A n a l y s i s . . 100 1. General L a w s 101 2. T h e o r y o f Rec iprocal Effect 102 3. Proportionality A n a l y s i s 103 C . F r e e d o m o f Express ion and the Personality Right 105 I. Statements o f O p i n i o n 106 II. Factual Assertions 107 III. C o n c l u s i o n 111 V C H A P T E R 5: H o w d o other C o m m o n L a w J u r i s d i c t i o n s b a l a n c e the t w o C o m p e t i n g V a l u e s ? A . U n i t e d States: N e w Y o r k T i m e s C o . v. Sul l ivan 113 B . Austral ia : Theophanous v. H e r a l d and W e e k l y T i m e s L t d 117 C H A P T E R 6: R e - t h i n k i n g the C a n a d i a n L a w o f D e f a m a t i o n A . H i l l v . C h u r c h o f Scientology 121 I. T h e Court's D e c i s i o n in H i l l 122 II. Cri t ical R e v i e w o f the D e c i s i o n in H i l l 126 1. Defamatory Speech's W e a k C l a i m to Constitutional Protection 127 2. D u t y to ascertain the Truth o f Allegations 131 3. Suff ic iency o f the C o m m o n L a w Defences 132 4. Rejection o f the A c t u a l M a l i c e R u l e 136 5. C o n c l u s i o n 137 B . T h e A p p l i c a t i o n o f the Charter to Court Orders and the C o m m o n L a w 138 C . Cri t ical L o o k at the L a w o f Defamat ion 147 I. Defamatory Nature o f the Mater ia l 148 II. Presumption o f Falsi ty 149 III. Presumption o f D a m a g e 150 I V . Presumption o f M a l i c e 151 V . C o m m o n L a w Defences 153 V I . C h i l l i n g Effec t o f the C o m m o n L a w o f Defamat ion 154 VII . C o n c l u s i o n 157 D . Proposals for Change 158 I. Absolute Immunity for all Poli t ical Discuss ion 163 II. Q u a l i f i e d Privilege for the C o m m u n i c a t i o n M e d i a 164 III. Extension o f the Fault Element 166 1. Defence o f D u e Di l igence 168 2. A c t u a l M a l i c e R u l e 170 3. Negl igence Standard 174 I V . Presumption o f Falsity 176 V . Presumption o f D a m a g e 177 V I . C o n c l u s i o n 177 B i b l i o g r a p h y • 179 vi I N T R O D U C T I O N Canadian courts have long fol lowed the traditional c o m m o n law rules for defamation cases, created to vindicate injury to personal reputation. In recent years, the decision was taken by the federal and nine o f the provincial governments to entrench freedom o f expression as a constitutional guarantee in the Canadian Charter of Rights and Freedoms, promising that everyone in C a n a d a has the right to freedom o f thought, belief, o p i n i o n and expression. Freedom o f expression and the individual's reputation are both generally highly valued in western society and regarded as deserving special protection. A t the same time, a certain tension exists between these two interests. In some contexts, notably the law o f defamation, they inevitably coll ide and whatever protections are added to the one must be taken away from the other. T h i s tension in the relationship between free expression and reputational interests is the subject matter o f m y thesis. Defamation law existed long before the Charter came into force. U n t i l very recently, this law developed without consideration having to be given to constitutionally entrenched values, particularly freedom o f expression, and has tended to favour the protection o f reputation. T h e focus o f this work, therefore, is the question whether the current law o f defamation takes the principles o f freedom o f expression sufficiently into account, or whether the guarantees o f freedom o f expression should be interpreted to m o d i f y the c o m m o n law o f defamation. I w i l l argue that the balancing o f the values in the existing c o m m o n law regime is no longer reflective o f contemporary views as to the significance o f freedom o f expression and I w i l l submit a proposal to adjust the entire c o m m o n law in order to br ing it into accord with what I contend are the Charter's and society's demands. 1 W i t h respect to both the content and the structure o f this thesis, I should point out that I am writing f rom the vantage point o f a law student f rom a c i v i l law tradition, and for an audience o f those f rom both, c i v i l and c o m m o n law traditions. In the first five chapters o f m y thesis I w i l l , therefore, l imit m y s e l f to s imply describing various areas o f law and legal theory in order to make this work comprehensible for the whole body o f m y audience. In the concluding chapter, I w i l l draw o n the material set out in the entry chapters and examine it critically. T h e first chapter deals with the philosophical assessment o f the two competing values at the centre o f m y thesis. W h e n weighing the right to free speech against another interest, it is important to ask w h y we have chosen to protect free speech, w h i c h o f the rationales is served by the particular expressive activity i n question. Moreover , it is material to check whether the interest w h i c h comes into conflict with freedom o f expression does not itself constitute a fundamental right worthy o f protection. In v iew o f this, the first chapter w i l l investigate both the philosophical foundations o f freedom o f expression and the reasons for protecting the individual's reputation. Since, in m y opinion, the c o m m o n law o f defamation does not take the right to free expression sufficiently into account the rationales underlying freedom o f expression are particularly important. I w i l l demonstrate that these rationales provide strong support for the constitutional protection o f some o f what is presently considered defamatory speech and consequently, for the modificat ion o f the c o m m o n law o f defamation i n order to bring it into accord with the Charter value o f freedom o f expression. T h e next step is to throw light on the two relevant sources o f law - the Charter and the c o m m o n law o f defamation - with regard to the interests at issue. T h u s , in the second chapter, the current c o m m o n law o f defamation w i l l be described. A t this point, I w i l l not take constitutional considerations into account, but s imply outline the b o d y o f defamation law uncritically, explaining its historical context and general framework, the elements o f the cause o f action and the defences available. In m y opinion, this representation is necessary in order to provide an overview o f the matter that I w i l l discuss and critique at a later point in the thesis. In this chapter I w i l l set the stage for the critical assessment that w i l l fol low i n the last chapter. F o r the same reason, namely to ensure a better understanding, chapter three introduces the Canadian Charter of Rights and Freedoms, particularly focussing on freedom o f expression. After briefly referring to the Charter's historical background and explaining its application, I wi l l elaborate on the structure o f the analysis used by the court in freedom o f expression cases. Thus, the scope o f the right to freedom o f expression w i l l be defined, and how this fundamental right can be l imited under s . l o f the Charter w i l l be examined. Chapter four temporarily departs from the m a i n subject o f the thesis. It describes h o w Germany, as a c i v i l law jurisdiction, deals with the balancing o f the col l iding values in the hope that this very different approach gives some inspiration for f inding an appropriate equil ibrium within Canadian defamation law. I w i l l explain the concept and structure o f G e r m a n constitutional scrutiny wi th regard to freedom o f expression. A l s o , I w i l l introduce some basic features o f G e r m a n constitutional law such as, for instance, the indirect effect o f basic rights and how the basic rights establish an objective order o f values that pervades the entire legal system and, therefore, also influences the content o f private law. M y intention, with regard to this chapter, is not so m u c h to compare the Canadian and German w a y o f balancing freedom o f expression and personal reputation, but rather to demonstrate that other western liberal democratic countries have come to widely divergent conclusions. B y presenting a conception o f defamation law in w h i c h freedom o f expression receives much 3 stronger protection, the reader possibly w i l l be convinced more easily o f the necessity o f strengthening this right in Canadian law as wel l . In Chapter five, two important decisions, New York Times v. Sullivan and Theophanous v. Herald Weekly Times, w i l l be addressed in order to lay the groundwork for the dealing with the solution adopted by the Canadian Supreme Court in Hill v. Church of Scientology of Toronto. T h e Supreme Court o f Canada referred to both o f those decisions in the Hill case, in which it addressed for the first time the question whether the c o m m o n law o f defamation needs to be modif ied in light o f the Charter. T o ensure a full comprehension o f this case, I consider it necessary to give an overview o f the mentioned decisions made i n the U . S . and i n Australia , two other c o m m o n law countries, especially since they represent possible proposals for modifications to the c o m m o n law o f defamation. F inal ly , chapter six tackles the m a i n issues o f whether Canadian defamation law indeed needs to be m o d i f i e d in order to c o m p l y with the Charter and what such a modif icat ion might look like. I w i l l introduce and examine the most important Canadian case with regard to the relationship between the competing interests, Hill v. Church of Scientology. M y critical review o f the Court's decision in this case leads me to the convict ion that the Supreme Court o f Canada erroneously m i n i m i z e d the Charter's impact on the c o m m o n law o f defamation. I w i l l then discuss why, according to the Supreme Court , the Charter does not apply to court orders and the c o m m o n law, and I w i l l argue that this view is irreconcilable with the Charter itself. M y conclusion is that the c o m m o n law o f defamation should be subject to Charter scrutiny in the same way statutory laws are, i.e. it should be tested against s ! o f the Charter. 4 I w i l l also have a more general critical look at this juncture, at the law o f defamation as outlined in Chapter 2. T h e ingredients necessary to make out a defamation action and the c o m m o n law presumptions o f falsity, damages and malice w i l l be examined with regard to their consistency with the Charter, particularly with freedom o f expression. I w i l l argue that the c o m m o n law o f defamation has a chi l l ing effect on free speech, that it protects the interest o f reputation to a disproportionate degree, disregarding the significance o f s.2(b), in sum, that it is not concerned with balancing the competing values at all . I w i l l take note o f some o f the proposals that have been made in the past to m o d i f y the c o m m o n law o f defamation, namely the introduction o f a qualified privilege for the communication media, the actual malice standard, absolute immunity for all political discussion and the adoption o f a defence o f due diligence. W h i l e acknowledging the value o f these proposals, I am o f the opinion that they are not sufficient to secure an appropriate protection o f freedom o f expression. M y suggestions are to do away with the presumptions o f falsity, malice and damages and give the principle o f fault a more significant role within the c o m m o n law rules that govern defamation. Based on the rationales that support free expression in general and defamatory speech in particular, the crit icism o f the law o f defamation, as wel l as the Supreme Court's decision in Hill, I w i l l conclude that the plaintiff, i n all defamation cases, must establish not only that the words he complains o f are defamatory, refer to h i m , and were published to a third person, but also that the allegations were false, indeed damaged his reputation, and that the defendant acted at least negligently i n publishing the defamatory falsehoods w h i c h injured the plaintiffs reputation. 5 C H A P T E R 1: T h e t w o V a l u e s i n P h i l o s o p h i c a l T e r m s A s I have already stated, it is material to ask what purposes are served b y the freedom claimed, when weighing the right to freedom o f expression against other interests. Moreover , it is important to f ind out whether the interest w h i c h comes into conflict with freedom o f expression, i.e. personal reputation, is not itself a fundamental right equally worth o f protection. Therefore, I w i l l precede the analysis o f the relationship between the competing interests with a description o f the philosophical foundations o f freedom o f expression and o f the significance o f personal reputation. A . T h e P h i l o s o p h i c a l F o u n d a t i o n s o f F r e e d o m o f E x p r e s s i o n M u c h has been said about the great importance o f freedom o f expression. It has been referred to as 'the matrix, the indispensable condition o f nearly every other form o f freedom.' 1 It has been considered as 'little less vital to man's m i n d and spirit than breathing is to his physical existence.' 2 It has been regarded as the 'liberty that underlies the existence o f virtually all other rights and liberties. ' 3 John Stuart M i l l stated that ' i f all m a n k i n d minus one were o f one opinion, and only one person were o f the contrary opinion, m a n k i n d w o u l d be no more justified in silencing that one person, than he, i f he had the power, w o u l d be justified in silencing 1 Cardozo J. in Palko v. Connecticut 302 U.S. 319, at p.327 (1937). 2 Rand J. in Switzman v. Elbling, [1957] S.C.R.285, at p.306; in Boucher v. King, [1951] S.C.R. 265 Rand J. also held (at p.288) that 'freedom on though and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life.' 3 Daivd Lepofsky, "Towards a Purposive Approach to Freedom of Expression and its Limitations", The Cambridge Lectures 1989, Les editions Yvon Blais Inc., at p.12; Cardozo J. in Palco v. Connecticut, 302 U.S. 319 (1937), at para. 17. 6 mankind. ' Often, freedom o f expression is looked upon as the most fundamental human right and it has been the focal point for m a n y o f the most important human rights advances o f modern history. T h e Supreme Court o f Canada has accepted three different rationales to explain w h y freedom o f expression receives constitutional protection in s.2(b) o f the Canadian Charter o f Rights and Freedoms: (1) free speech constitutes a fundamental component o f democracy, (2) it promotes the discovery o f truth and (3) it plays an important role as an instrument o f personal self-fulfilment. In Irwin Toy5 the Court summarized these rationales b y saying that seeking and attaining the truth is an inherently good activity, participating in social and political decision-making is to be fostered and encouraged and the diversity i n forms o f individual self-fulfilment and h u m a n flourishing ought to be cultivated i n an essentially tolerant environment not only for the sake o f those who convey a meaning but also for the sake o f those to w h o m it is conveyed. I. T h e A r g u m e n t f rom D e m o c r a c y T h e argument that free speech is a necessary prerequisite for a democratic government is the most c o m m o n l y recognized rationale for freedom o f expression. In the Canadian context the link between freedom o f expression and the idea o f democratic government is easy to explain. Prior to the Charter the Canadian Constitution did not specifically protect freedom o f expression. If the courts wanted to give any protection to this freedom they had to f ind some basis for it in the form o f government set out in the Constitution. T h e y recognized that the value o f an informed and intelligent citizenry was implicit in the choice o f a parliamentary form o f government. 6 4 On Liberty and Considerations on Representative Government, (Basil Blackwell, Oxford, 1946), at p.14. 5 [1989] 1 S.C.R. 927, atp.976. 6 Richard Moon, "The Scope of Freedom of Expression", (1985) 23 Osgoode Hall Law Journal (1-2) 331 at p.339. 7 Indeed, freedom o f expression had been regarded as one o f the basic values o f a free society before it received explicit protection by the Canadian Charter o f Rights and Freedoms. 7 Pre-Charter cases focused on political expression, as it constitutes a fundamental component o f democracy. C a n n o n J., for example, acknowledged in Reference Alberta Legislation that 'democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nat ion . . . ' 8 Similarly , Abbott J. stated in a later case that 'the right o f free expression o f o p i n i o n and o f criticism, upon matters o f public p o l i c y and public administration, and the right to discuss and debate such matters, whether they be social, economic or political , are essential to the w o r k i n g o f a parliamentary democracy. ' 9 Historically, the tradition o f liberal democracy has been l inked to a theory o f social contract 1 0 that sees the basis o f the state's legitimacy i n the consent o f the governed. A l t h o u g h the state and law should provide the citizens with as m u c h space as possible to pursue their o w n interests, law is still necessary as public manifestation o f the c o m m o n w i l l since individuals live in conditions o f interdependence and need some sort o f regulation o f their interactions. 1 1 A s a consequence, individuals enter into a social contract and thereby consent to government power to secure their lives, liberty and property. But this consent is l imited to the protection o f rights and interests that they cannot adequately safeguard. T h e y do not give the state authority to interfere in other domains. 7 See for instance R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, where Mclntyre J. held at p.583 that freedom of expression is not a creature of the Charter but one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. 8 [1938] 2D.L.R. 81, at p.l 19 (Cannon J.). 9Switzman v. Elbling, [1957] S.C.R. 285, atp.326 (Abbott J.). 1 0 John Locke elaborates on the conception of consent and civil government in Treatise of Civil Government and a Letter concerning Toleration, (Appleton-Century-Crofts, New York, 1965). 1 1 Richard F. Devlin, "Mapping Legal Theory", (1994) 32 Alberta Law Review 602, at p.610. 8 T h i s idea i n a w a y forms the basis o f Meiklejohn's concept of 'self -government ' , government by consent. A c c o r d i n g to h i m , a democratic government is one that is responsible to its citizenry and seeks to represent their interests. It must give people an opportunity to formulate their views on matters o f public importance and to express those views to their polit ical representatives in 13 order to act democratically. In v iew o f this, the purpose o f free speech is to give every voting member the fullest possible participation in the understanding o f those problems with which the citizens o f a self-governing society must d e a l . 1 4 T o d a y , democracy generally is accepted as the proper w a y o f organizing a state. It can be understood as a system w h i c h acknowledges that ultimate political power resides in the population at large, w h o either directly or through their elected representatives control the operation o f government . 1 5 T o realize this idea a structure is usually necessary that provides frequent and open elections with universal suffrage and with some principle o f majority rule. T h e m a i n feature o f democracy that distinguishes it f rom other forms o f government accordingly is that government is selected by and representative o f the people and that it derives its powers f rom the consent o f the governed. If democracy rests f inally o n the choices o f the citizens and on their consent, they must all be free to discuss and debate issues o f public or private concern in order to actually exercise their right o f consent. Without freedom o f open discussion and freedom to form judgements, the 1 2 Alexander Meiklejohn, Political Freedom, (Harper and Brothers Publishers, New York, 1948); At p. 14 he says that at the bottom of every plan of self-government is a basic agreement, in which all the citizens have joined that all matters of public policy shall be decided by corporate action, that such decisions shall be equally binding on all citizens whether they agree with them or not and that if need be they shall by due legal procedure be enforced upon anyone who refuses to conform to them. Meiklejohn's argumentation is guided by the procedure of the traditional American town meeting whose final aim is the voting of wise decisions in order to promote the welfare of the community. 1 3 In Richard Moon, "The Scope of Freedom of Expression", (1985) 23 Osgoode Hall Law Review 331, at p.335. 1 4 Ibid, atp.75. 9 public cannot truly consent to the continued rule o f a government . 1 6 It is crucial to make all relevant information available to the citizens, to provide them with all the information they need to make their decisions. Without this full information an intelligent vote is not possible and, therefore, denying access to that information could be equated with denying the right to vote . 1 7 G i v i n g the governed freedom o f expression allows them to express political opposition and encourages them to criticise government and the way in w h i c h the affairs o f society are 18 managed b y the state. T h i s is particularly important since through the political process most o f the immediate decisions o n the survival , welfare and progress o f a society are made where the state especially is tempted to repress o p p o s i t i o n . 1 9 If the government could restrict expression it w o u l d be enabled to suppress such critical and dissenting views. A s a consequence, the public's ability to revoke its consent and to appoint a new government, w h i c h is more representative, w o u l d be severely restrained. 2 0 T h i s rationale supports the protection o f defamatory speech as wel l . Matters o f public importance, w h i c h must be open to discussion, certainly comprise stories about political activities and the conduct o f public officials. If citizens truly are to be al lowed to discuss and debate such issues this must mean that they can state their actual opinion even i f this w i l l result in defamatory allegations. Polit ical speech has a core status. Therefore, the limits o f acceptable criticism must be wider in so far as politicians are concerned; the government and government officials must endure a greater degree o f criticism. However , critical communications might 1 5 Frederik Schauer, Free Speech: a philosophical Inquiry, (Cambridge University Press, Cambridge, 1982), at pp.36. 1 6 David Lepofsky, supra n.3, at p.7; Thomas Emerson, Towards a General Theory of the First Amendment, (Random House, New York, 1966), at p.10. 1 7 Schauer, supra n.15, at p.38. 1 8 Gita Honwana Welch, "The Meaning and Significance of the Freedom of Expression", in Robert Martin, Speaking Freely (Irwin Law, Toronto, 1999), at p.79. 1 9 Emerson, supra n.16, at p.9. 10 easily be considered as defamatory b y the courts. T o seriously apply the rationale o f democracy means that even defamatory crit icism has to be accepted as participation i n social and political decision-making. Freedom o f expression, however, is not only regarded as essential to the working o f a parliamentary democracy but also serves other valuable political functions, such as the accommodation o f interests, the enhancement o f social stability as wel l as the deterrence o f abuse o f authority. Government can only be brought closer to the w i l l o f its people i f the latter make their views k n o w n to their representatives. A c c o r d i n g l y , the greater the public participation in the governing process through freedom o f expression, the more responsive is a government and the better it w i l l serve the wishes o f the people . 2 1 T h e democratic machinery o f government w i l l be improved to the extent that free speech is allowed. C l o s e l y connected to this aspect is the idea o f achieving a balance between stability and change. In today's dynamic society change is inevitable since views and ideas frequently alter. Suppression o f free speech might prevent social change for some time but it cannot erase thought or belief. Instead it conceals the real problems that a society is confronted with and drives opposition underground. T o suppress discussion means to substitute force for reason w h i c h hinders rational judgement and promotes inflexibility. Society w i l l be prevented from 2 0 Lepofsky, supra n.3, at p.7. 2 1 Lepofsky, supra n.3, at p.7; Emerson, supra n.16, at p. 10. Certainly, it could be argued that free expression does not produce an adequate reflection of the spectrum of desires and interests because the wishes of the powerful and rich will be given more voice with the result that there is a persuasive inequality, impairing the interest accommodation. However, it is never possible to assess interests in a society without any distortion. And the suppression of certain desires held by members of the privileged group would probably not result in a more accurate account of what citizens want as a whole. 11 adjusting to changing circumstances or from developing new ideas. T h e result is general stagnation. W h e n change is finally forced on the community it w i l l come in a more violent and radical f o r m . 2 2 It is the government's responsibility to foster change and reform in society i n accordance with the public 's wishes. Government has to maintain economic and social conditions under which a democratic system can operate and it is crucial that the corresponding social , economic and political reforms are implemented i n a constructive and non-destabilizing w a y . 2 3 F r e e d o m o f expression provides a framework in w h i c h change can take place without destroying society. Since free communicat ion allows people to indicate their wishes an appropriate assessment o f interests is more l ikely with the result that competing interests and desires can more easily be adjusted. 2 4 Furthermore, a process o f open discussion serves to legitimate majority decisions i n the minds o f opponents. People who had full freedom to state their position and to persuade others to adopt it are more ready to accept a majority decision that goes against them. If they had a part in the decision-making process they recognize that they have been treated fairly and have done everything within their power. Otherwise, those who disagree still have the possibility to vent their dissatisfaction and resentment in public in a non-violent manner b y exercising their freedom o f expression. T h u s , free speech can help to achieve social stability and it promotes a peaceful progress towards an ongoing improvement. Emerson, supra n. 16, at pp. 11. 2 3 Lepofsky, supra n.3, at p.9; Emerson, supra n.16, at p. 14. 2 4 Kent Greenawalt, Fighting Words; Individuals, Communities and Liberties of Speech, (Princeton University Press, Princeton, New Jersey, 1995) at p.5; Thomas Emerson, The System of Freedom of Expression, (Random House, New York, 1970) at p.7. 2 5 Kent Greenawalt, Speech, Crime, and the Uses of Language, (Oxford University Press, New York, 1989) at p.25; Emerson, supra n.16, at p.12; Lepofsky, supra n.3, at p.9. 12 O f central importance is also that free speech serves as a check on abuse o f authority. Wherever choice is i n v o l v e d in h u m a n life people's actions partly depend on what they think w i l l become k n o w n . If they are confident that what they do can be kept secret they are more l ikely to perform acts w h i c h are c o m m o n l y regarded as wrong. Government authorities like everybody else in a position o f power are inevitably tempted to use their power to their benefit and in corrupt ways. Elected officials , however, are very sensitive to public opinion. B e i n g subject to public scrutiny they are less l ikely to y ie ld to the temptation, i.e. the threat o f exposure o f their misconduct can restrain them f rom personal abuses o f their o f f i c e . 2 6 Therefore, freedom o f expression, which enables the public to carefully scrutinize and critically discuss the conduct o f public officials, makes possible holding governmental officials properly accountable to the electorate 2 7 and thus fosters public confidence in governmental institutions. 2 8 T h i s last aspect is particularly important with regard to defamatory expression. If a public official is reproached for certain misconduct the allegations in this connection w i l l almost necessarily be potentially defamatory. T h e idea o f public scrutiny as a check on abuse is conceivable only i f defamatory speech is protected by freedom o f expression as wel l . T h e argument f rom democracy, however, only regards political expression as worthy o f constitutional protection although the wording o f s.2(b) suggests a m u c h broader understanding o f freedom o f expression. T h u s , this rationale does not account for the full scope o f the right but only for a narrow sector o f it. Greenawalt, supra n.25, at p.26; detailed: Vincent Blasi, "The checking Value in First Amendment Theory", American Bar Foundation Research Journal 1977, pp.521. 2 7 Greenawalt, supra n.25, at p.26; Schauer, supra n. 15, at p.35. 13 II. Truth D i s c o v e r y Another argument to justify the protection o f freedom o f expression is that free speech promotes 29 the discovery o f truth and is an essential process for advancing knowledge. John M i l t o n 3 0 at first brought forth the argument from truth b y proceeding o n the assumption that the absence o f government restriction o n publishing w i l l enable society to locate truth and reject error. Later, John Stuart M i l l 3 1 contended that i f voice is given to a wide variety o f views over the long run true views are more l ikely to emerge than i f government suppresses what it deems to be false. T h i s liberal concept has more recently been described in terms o f the maintenance o f a free marketplace o f ideas by the A m e r i c a n judge H o l m e s , who held that 'the best test o f truth is the power o f the thought to get itself accepted i n the competition o f the market ' . 3 2 Truth w i l l most l ikely surface w h e n all opinions m a y freely be expressed, when there is an open and unregulated market for the trade in ideas. T h e core principle o f these theories is that freedom o f expression is a means o f identifying and accepting truth and that truth has the power to prevail in the adversary process or at least is more l ikely to emerge i f no idea is excluded from the discussion. T h e idea is that i f people are exposed over a period o f time to various assertions they are likely to sort out w h i c h are more nearly t rue . 3 4 O n the one hand, h u m a n judgement, w h i c h is subject to emotion, prejudice or personal interest, suffers from lack o f information or inadequate thinking and therefore m a y err. It must remain incomplete and subject to further extension or The checking function of freedom of expression can be extended to public power in general. Judges, for instance, daily discharge important public authority. The openness of courts to public attendance ensures that judges fulfil their duties free from arbitrariness and abuse by subjecting them to pubic scrutiny. 2 9 This argument is premised on the initial assumption that the search for truth is a desirable goal. But certainly a society with more knowledge is better off than one with less. 3 0 In Areopagitica (University Tutorial Press, London, 1968; from 1644). 3 1 In On Liberty (from 1859) supra n.4. 32 In Abrahams v. United States (1919), 250 U.S. 616, atp.630. 3 3 Schauer, supra n. 15, at p. 16. 3 4 Greenawalt, supra n.25, at p. 16. 14 modificat ion. A s a consequence, an individual who seeks knowledge and truth must hear all sides o f the question, especially as presented b y those who have a different opinion, in order to arrive at the most rational judgement. A c c o r d i n g l y , open discussion, free exchange o f ideas and the freedom to criticize are necessary conditions for the effective functioning o f the process o f searching for truth. O n the other hand, scepticism is advisable even with respect to accepted beliefs and widely acknowledged truth. A s the past has shown in cases such as for instance Copernicus or Einstein, advances in h u m a n knowledge have often resulted f rom challenging so far unquestioned assumptions. 3 6 E v e r y age has held opinions w h i c h have been deemed false by subsequent ages and certainly m a n y views that are at present generally regarded as true w i l l in future times be rejected. 3 7 Therefore, no opinion can be immune from challenge, particularly not in a constantly changing wor ld , and discussion must be kept open no matter h o w w i d e l y acknowledged an opinion m a y seem to be. A r g u a b l y , free expression o f ideas might not indeed lead to truth. His tory provides enough examples where truth d id not prevail , at least in the short run. H o w e v e r , a pol icy o f nonregulation at least leaves open the theoretical possibility that error can be corrected and assists in promoting the truth in a way w h i c h w o u l d be impossible without freedom o f expression. M i l l , as one o f the early advocates o f this idea, argues that the opinion w h i c h is attempted to be suppressed by authority m a y possibly be true or m a y contain a portion o f truth. H e continues that i f the o p i n i o n is right the human race is deprived o f the opportunity o f exchanging error for 3 5 Emerson, supra n.16, at p.7; Schauer, supra n.15, at p.15. 3 6 Emerson, supra n.16, at p.8. 3 7 Mill , supra n.4, at p. 16. 15 truth and that even i f a new opinion is false it should not be stifled for its presentation and the discussion about it compel a rethinking and retesting o f the already accepted and attacked opinion. T h e col l i s ion with error leads to a clearer perception and livelier impression o f truth, w h i c h results i n a deeper understanding o f the reasons for holding the accepted opinion and its T O meaning can be fully appreciated. H e points out that the only justification for suppressing an opinion is that those who decide to suppress it are infallible in their judgement o f the truth. If public authorities refuse to hear an opinion because they are sure this opinion is false they assume that their certainty is an absolute certainty. But no individual or group can be infallible and there is no such thing as absolute certainty; thus, all si lencing o f discussion is an assumption o f i n f a l l i b i l i t y . 3 9 T h e difficulty o f determining whether a communicat ion is true or false also has implications for defamatory speech. A l t h o u g h defamatory in nature a statement still might be true and thus, the person identified i n it is not entitled to be protected against it since he does not deserve a good reputation in this connection. T h u s , in order to avoid the suppression o f right ideas even defamatory speech should be prima facie protected. In a way, M i l l ' s line o f argument supports the concept o f content neutrality laid d o w n in Irwin Toy40 according to w h i c h expression cannot be excluded from the scope o f s.2(b) on the basis o f the content or meaning being conveyed. In view o f the infallibility necessary to decide whether Mill, supra n.4, at p. 15; see also Emerson, supra n.16, at p.8. 3 9 Mill, supra n.4, at p.15. With regard to this, Greenawalt (in Fighting Words, supra n.24, at p.5) as well as Dworkin (Freedom's Law - the Moral Reading of the American Constitution, Harvard University Press, Cambridge, Massachusetts, 1996, at p.204) pointed out that while human judgement in general has to be looked at with scepticism this scepticism applies even more to the motives and abilities of those to whom people grant political power. Especially where the political area is concerned government's own view of truth is to be distrusted since officials want to stay in office and promote their interests. The state's self-serving tendency motivates the state to repress speech critical of its policies. A principle of freedom of expression allows people to voice their scepticism where the power of any authority to distinguish truth from falsity is concerned. w Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927, atp.969. 16 a comrnunication is true or false it is preferable to protect expression independently o f its content. Proceeding f rom this premise, defamatory content is irrelevant with respect to s.2(b) protection. A l t h o u g h the confidence placed in the reasoning power o f people and the faith in the ability o f reason to distinguish truth f rom falsehood is based o n a rather optimistic v iew o f the rationality and perfectibility o f h u m a n i t y 4 1 , and although an increase o f knowledge can only be achieved at the expense o f tolerating m a n y unsound ideas with the risk that the public might accept false opinions despite their falsity and act i n accordance with them the advantages o f unregulated expression outweigh the disadvantages connected with i t . 4 2 A l l o w i n g free expression o f opinion w i l l increase the number o f alternatives and challenges to received views. T o raise the number o f ideas i n circulation, again, w i l l i n all probability increase the total number o f correct ideas. Despite the circumstance that the public m a y not be able to identify most effectively the truth and sound policies, the public is very suitable for offering the multitude o f ideas necessary to advance knowledge s imply because o f its size and diversi ty . 4 3 Therefore, the population at large holds a valuable function in the truth-seeking process . 4 4 E v e n though a 'marketplace' o f ideas might not present the best solution and the population at large might not be able to discern truth, the critical question is h o w w e l l truth w i l l advance in conditions other than freedom and how far constraints o n conversation imposed by the government w i l l serve the truth. A l t h o u g h individuals m a y not be trustworthy in their evaluations it m a y be even more suspect to let government decide what people may hear and see. Certainly, a process o f rational thinking where we listen to other (opposing) positions and 4 1 Schauer, supra n.15, at p.26. 4 2 Robert F. Ladenson, "A Philosophy of Free Expression and its Constitutional Applications", (Rowman and Littlefield, New Jersey, 1983) stated at p.34 that although unregulated expression of attitudes and beliefs occasionally leads to serious trouble total regulation virtually guarantees it. 4 3 Schauer, supra n.15, at p.27. 17 consider the possibili ty that we might be wrong is preferable to government selecting truth and suppressing 'apparent falsehoods' . 4 5 A t the same time a 'marketplace o f ideas' increases the total bank o f knowledge in society through the acquisition o f new ideas. It serves public education. M e m b e r s o f society profit from the aggregated information by being enabled to increase their level o f educat ion . 4 6 Diversity and plural ism i n society w i l l be fostered because freedom o f expression allows the presentation o f a multitude o f opinions and ideas. T h i s is especially important in Canada where the Canadian Charter expressly contains the commitment to the enhancement o f multiculturalism in its s.27. 4 7 In a society with freedom o f expression individuals and groups can feel free to exercise and manifest to others their cultural and ideological divers i ty . 4 8 People who all differ in their attitudes, desires, motivations and abilities can openly display their opinions and choices and therefore produce a great variety o f ideas and stimulate individuals. Society m a y profit from this diversity because it encourages experimentation with alternative policies , life styles or governmental organizat ions . 4 9 In accordance with this idea, the Supreme Court o f Canada held in Irwin Toy50 that the protection o f freedom o f expression is 'fundamental because in a free, pluralistic and democratic society we prize a diversity o f ideas and opinions for their inherent value both to the communi ty and to the individual . ' Schauer, supra n.15, at p.28. 4 5 Schauer, supra n.15, at pp.27, 34; Greenawalt, supra n.25, at pp.20-22. 4 6 Lepofsky, supra n.3, at p.l 1; Ronald A. Cass mentioned in "First Amendment Access to Government Facilities", (1979) 65 Va.L.Rev. 1287, at p.1311 the benefits of improved knowledge in any field. 4 7 S.27 demands that the Charter 'shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians' to constitutionally ensue that Charter rights will be construed in a manner which promotes this heritage.' 4 8 Lepofsky, supra n.3, at p.l 1. 4 9 Schauer, supra n.15, at pp.66. 5 0 [1989] 1 S.C.R. 927, atp.968. 18 Final ly , it promotes tolerance to allow a broad variety o f views and to acknowledge the right o f everybody to speak and express their attitudes. 5 1 O f course the promotion o f tolerance is not a primary justification for freedom o f expression but in a tolerant society where people can feel free to be different there probably is a greater cohesion and a greater potential to use the existing diversity in an advantageous and innovative way. L i k e the argument f rom democracy, the truth rationale also is under-inclusive. Often there are forms o f artistic, commercial or political expression that has purposes other than the search for truth, for instance, they might intend to shock, entertain, or motivate without contributing to truth discovery. S u c h expression w i l l not be covered by the argument from truth. III. F r e e d o m o f Express ion and Individuality T h e above-described arguments from democracy and truth value open communicat ion for what it does, for its positive effects . 5 2 T h e y treat free speech as a means, for instance a means o f ensuring the proper functioning o f a democratic state or as a means o f identifying truth, and not as an end in itself. Emphasis is on the interests o f and the benefits to society as a whole rather than on concerns for the wel l -being o f individuals and the values that underlie those previous arguments are more social than individual . T h e fo l lowing groups o f arguments, on the other hand, focus o n free speech as an autonomous value and on the individual as such. F o r instance, they regard the individual 's capacity and freedom to form one's o w n views, impressions and opinions and to discuss these with others without restraint or fear o f off icial scrutiny or censorship as a pre-requisite to one's growth, maturation and se l f - ful f i lment . 5 4 Here expression is seen as being o f intrinsic worth to the individual , an important element o f individual 5 1 Greenawalt, supra n.25, at p.29. 5 2 This is what Greenawalt refers to as consequentialist justifications for free speech. 5 3 Schauer, supra n.15, at p.47. 19 autonomy and self-realization. Individual wel l -being is regarded as an end in itself. O n e argument for freedom o f expression i n this category is based on the conception o f individual autonomy. T o begin with, communicat ion is fundamental to h u m a n existence. It is important for the welfare o f the individual to have the opportunity o f relating to others and exchanging ideas with others . 5 5 W h i l e the state m a y legitimately exercise power within its domain there is a sphere that belongs to the individual himself, a private area that concerns matters w h i c h are not the government's business. It is the private domain o f the m i n d that is under the exclusive control o f the individual and beyond the reach o f state power. In this area the individual is truly autonomous . 5 6 A s a consequence, the individual should be free to articulate his o w n judgements on circumstances and persons and to communicate them to others even i f they might be defamatory in nature. Scanlon characterizes autonomy as m a k i n g one's o w n choices and not being subject to the dictates o f others i n one's decisions. It means a capacity in the individual to make judgements and to give intelligent direction to his life. A n autonomous person cannot accept without independent consideration the judgement o f others as to what he should believe or what he should d o . 5 7 Therefore, i n order to regard himsel f as autonomous, a person must see himself as sovereign in m a k i n g his decisions. In all matters o f choice the ultimate choice has to rest with Lepofsky, supra n.3, at pi 1. 5 5 The German writer Thomas Mann (1875-1955) observed that speech is civilization itself and the word, even the most contradictory word, preserves contact - it is silence which isolates. And George Orwell described in 1984 (from 1949) how the individual becomes a prisoner within his body and mind as a result of official monitoring of his thoughts, beliefs and speech. 5 6 Schauer, supra n.15, at p.68. 5 7 Thomas Scanlon, "A Theory of Expression", Philosophy and Public Affairs, vol.1 (1971), 203, printed in Schauer, The Philosophy of Law, (Hartcourt Brace College Publishers, Philadelphia, 1996) 356, at p.364. 20 the individual . T h e premise o f Scanlon's argument for freedom o f expression is that the powers o f the state are limited to those that citizens can recognize while still regarding themselves as equal, autonomous and rational agents. 5 9 T h e government is morally b o u n d to respect the autonomy o f individuals and has to treat them as capable o f making decisions for themselves and o f forming intelligent conceptions o f how their lives should be l ived. Therefore, it is necessary that an individual's decision ought to be as informed and intelligent as p o s s i b l e . 6 0 F r e e d o m o f choice requires a free f low o f information to the individual . T h e individual has a right to receive this information and, beyond it, without governmental intrusion into the process o f choice, i.e. government ought not to restrict it. If government tries to prevent an individual from receiving information and ideas from others on the grounds that it believes he is not capable o f m a k i n g judgements for h imsel f and because it wants to protect h i m from c o m i n g to have false beliefs it fails to show this individual the required respect. In that case government does not recognize the individual's autonomy. Especial ly in questions o f faith, matters o f moral religious or philosophic doctrine, it is obvious that the state has no authority to ultimately make decisions for individuals. Therefore, the state has no mandate to limit the information u p o n w h i c h a choice m a y be made by the individual for the individual . Governmental prohibition in that respect interferes with the individual 's exercise o f autonomy whereas a l lowing all ideas to be expressed fosters individual ism and freedom o f choice. Thus , freedom o f expression is thought to promote autonomy because it affords people the opportunity to hear competing positions and to explore options i n conversations with others and thereby supports and encourages independent judgement and considered decisions. 5 8 For example, when the law requires or prohibits a certain action the autonomous individual can still decide whether to obey the law or to violate it and take the consequences. 5 9 Scanlon, supra n.57, at p.363. 21 T h e idea that an individual 's decision ought to be as informed as possible in order to promote his autonomy resembles the concept o f the citizens' consent as described within the argument o f democracy, but o n a more general level. T h i s idea similarly supports the protection o f defamatory expression: It is an end i n itself (and essential for autonomy) to communicate your o w n opinion and to receive the opinion o f others. T o listen to communications w h i c h a court at trial regards as defamatory also contributes to the forming o f an o p i n i o n and the making o f a decision. In case the allegations are false they m a y certainly have negative effects with the result that the reputational interests o f the person concerned should prevail in the end. However , it is possible that the imputations are true, in w h i c h case their expression can be helpful for the decis ion-making process o f their recipient. F o r this reason, speech w h i c h is defamatory should not per se be excluded from the constitutional protection o f expression. Otherwise, communications important for the process b y w h i c h persons consciously choose from among alternatives might be suppressed. O n e positive effect o f such personal autonomy is that individuals who decide for themselves usually act and live in a better w a y than those who passively submit to authority. F o r instance, i f people work out a style o f life for themselves, their life is probably more fulf i l l ing than one that they w o u l d achieve b y s imply confirming to standards set by others. 6 1 Apar t f rom this, society at large and the state itself m a y benefit from the satisfaction o f individual interests. A s John Stuart M i l l already observed: the worth o f a State, in the long run, is the worth o f the individuals composing it and with small m e n no great thing can really be accomplished. M i l l is convinced that the h u m a n race collectively and over the long run benefits f rom cultivation o f individuality and believes that the more one's individuality is developed the more valuable one becomes 6 0 Schauer, supra n.15, at p.69; In Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 323, a case that dealt with commercial expression, the Supreme Court of Canada noted that enhancing the ability to make informed choices is an important public interest. 22 oneself, and therefore, the more potentially valuable one becomes to others. Similar to the concept o f autonomy is that o f self-development w h i c h proceeds from the assumption that the achievement o f self-realization commences with development o f the m i n d . T h e basis o f this concept is the premise that the proper end o f m a n is the realization o f his character and potentialities as a human being. M a n ' s faculties o f reason and thinking are the core o f self-development since they distinguish humanity f rom other forms o f animal life. T h r o u g h the development o f man's powers such as the capacity to think i n abstract terms, to use language and to communicate his thoughts and emotions, m a n finds his meaning and place in the world and the fullest use o f these powers is his ultimate g o a l . 6 3 T h e process o f intellectual self-development, however, can only operate effectively when there is communicat ion o f thoughts and beliefs and the exchange o f different ideas since minds do not develop in a v a c u u m or in isolation. Characteristically h u m a n capacities such as rational thought, moral judgement and emotional attachment can only develop b y means o f social interaction. A society o f some k i n d and communicat ion with one another are essential i f individuals are to develop as thinking b e i n g s . 6 4 It happens, for example, that a person has a certain train o f thought w h i c h does not fully develop and become clear until it has to be articulated to someone else in an intelligible form. C o m m u n i c a t i o n enables the speaker to better understand his o w n thoughts, to clarify and to give 6 1 Greenawalt, supra n.25, at p.32. 6 2 However, this theory does not mean that freedom of expression will actually produce fully autonomous individuals. The claim is that people will be more autonomous under these circumstances than under a regime of substantial suppression. Regarding societies in history shows that comparative autonomy of individuals is linked to relative freedom of opinion. But regardless of whether free speech actually promotes autonomy and rational decision, at any rate, to grant this liberty constitutes a public recognition of people as autonomous. (Greenawalt, supra n.25, at p.27; as well as in Fighting Words, supra n.24, at p.5). 6 3 Emerson, supra n.16, at p.4; Schauer, supra n.15, at p.54. 6 4 Richard Moon, "The Scope of Freedom of Expression", 23 Osgoode Hall Law Journal (1-2), 1985, 331, at pp.346. 23 form to them. A t the same time, it is advantageous to the recipient to receive and assess the information presented to h i m . H e benefits f rom the knowledge that others share with h i m . H e may, for instance, not have imagined a certain possibility w h i c h has been suggested to h i m by another person and, thus, is made aware o f having choices. H i s capacity for thought and his self-development are furthered as w e l l . 6 5 T h u s , freedom to communicate is a vital aspect o f the development o f one's personality and integrity. In connection with freedom o f expression, the aspect o f h u m a n dignity also needs to be mentioned. T h e willingness o f others to listen to what one has to say generates self-respect. It is a sign o f respect to acknowledge that the choices o f one individual are as worthy as those o f anyone else. W h e n a person's ideas are suppressed society is saying that his ideas are not worthy, that they are not as good as those o f most other people. Censorship is degrading and conveys the impression o f undesirability or inferiority o f the beliefs concerned. There is something particularly dehumanizing about telling a person that he cannot communicate his beliefs; to deny someone the respect o f listening to what he has to say or to exclude h i m from the possibili ty o f speaking is to deprive h i m o f his dignity. A n d since the expression o f beliefs and feelings are closely tied to one's personality, restriction o f expression m a y offend one's sense o f dignity to an even greater degree than other restrictions. A c c o r d i n g to this view, suppression o f belief, opinion and expression is an affront to the dignity o f the individual and a negation o f man's essential nature . 6 6 A t the same time, to suppress certain beliefs is like treating the person who f i rmly holds them as an unequal member o f society because his ideas are regarded as not being o f equal value with everyone else's ideas. T o favour some points o f views over others and to impose selective Moon, ibid, at pp.352; Schauer, supra n.15, at p.55. Emerson, supra n.16, at p.5; Greenawalt, supra n.25, at p.28, 33f; Schauer, supra n.15, at p.62. 24 restrictions based o n the content o f ideas infringes the principle o f equality. However , the argument that free expression is a pre-requisite for autonomy or individual self-fulfilment is in danger o f being a general argument for individual liberty without actually explaining w h y expression, in contrast to other self -fulf i l l ing activities, deserves special constitutional protection. I V . F i n a l Remarks A l l the above-mentioned arguments have distinct values but are nevertheless interdependent and l inked to each other. Certainly, each o f the concepts has its flaws and weaknesses. N o one rationale alone is l ikely to be adequate or to give an independent argument for the principle o f free expression. (The arguments f rom democracy and f rom truth, for instance, do not account for the ful l scope o f freedom o f expression, while the arguments referring to individual self-fulfilment or autonomy are said to be over-inclusive.) However , there is no need to adopt just one justification. T h e different justifications m a y assume various degrees o f importance depending o n the circumstances o f the situation. E v e n though one theory in itself might not be sufficient to justify freedom o f expression all o f them collectively create significant support for this fundamental right. B . T h e S i g n i f i c a n c e o f an I n d i v i d u a l ' s R e p u t a t i o n T h e reputation o f a person is the esteem in w h i c h he is held, or the g o o d w i l l entertained towards h i m , or the confidence reposed in h i m by other persons, whether in respect o f his personal character, his private or domestic life, his public , social, professional, or business qualifications, 6 7 Schauer, supra n.15, at p.63; Greenawalt, supra n.25, at p.33. 25 qualities, competence, dealings, conduct, or status, or his financial credit. A good reputation is built up b y a lifetime o f conduct and its possession is conducive to happiness in life and contentment. T h e loss o f it brings shame, misery and heartache. It is not like material things in life that one m a y have today, lose tomorrow and repossess again the next day. O n c e lost, it is practically impossible to be regained . 6 9 In the words o f W i l l i a m Shakespeare, 'spotless reputation' is 'the purest treasure mortal times afford; that away, m e n are but gilded loam or painted c l a y ' . 7 0 A n d according to Steward J . 7 1 'The right o f a m a n to the protection o f his o w n reputation f rom unjustified invasion and wrongful hurt reflects no more than our basic concept o f the essential dignity and worth o f every human being - a concept at the root o f any decent system o f ordered liberty.' Reputation is and always has been regarded as an important value w h i c h the law must protect. It has been described as the fundamental foundation on w h i c h people are able to interact with each other in social environments 7 2 , as the most dearly prized attribute o f c i v i l i z e d m a n 7 3 and as a measure o f the cultural and democratic quality o f a society. 7 4 S o m e form o f legal or social constraints on defamatory publications is to be found in all stages o f civil ization, however imperfect, remote and proximate to b a r b a r i s m . 7 5 I. Historical Protection o f Reputation T h e interest o f persons in protecting their good reputation was acknowledged early in the development o f the c o m m o n law and it continues to receive strong protection under the tort o f defamation. H o w e v e r , society's recognition o f how vulnerable reputation is and how easily a 6 8 Spencer Bower, Bower on Actionable Defamation, 2nd ed. (Butterworths, London, 1923), at p.3. 6 9 O'Donnell v. Philadelphia Record Co., 356 Pa. 307, 51 A 2d 775 (1947); 319a-320a, by Gordon J. 7 0 Shakespeare, 1564 - 1616, in Richard II. 71 Rosenblatt v. Baer, 383 U.S. 75, at p.92 (1966). 7 2 David Lepofsky, "Making Sense of the Libel Chill Debate: do Libels 'chill' the Exercise of Freedom of Expression?", (1994) 4 N.J.C.L. 169, at p. 197. 7 3 John Fleming, The Law of Torts, 9th ed. (LBC, Toronto, 1998), at p.580. 7 4 Raymond Brown, The Law of Defamation in Canada, Vol.1, (Carswell, Toronto, 1987), at p.4. 26 false statement about a person can occasion damage traces back to times long before the c o m m o n law o f defamation. Original ly , the c o m m o n law derives f rom the B i b l e , the M o s a i c code and the T a l m u d , a collection o f sayings o f the Jewish rabbis covering the first six centuries after C h r i s t . 7 6 In the M o s a i c c o d e 7 7 for example, w h i c h existed some fifteen centuries before the Christian era, it says in Exodus X X I I I 1 ' T h o u shalt not raise a false report: put not thine hand with the w i c k e d to be an unrighteous witness'. T h e B i b l e , for instance, referred to reputation in Ecclesiastes by stating that 'a good name is better than precious ointment' and that 'a good name is rather to be chosen than great r iches ' . 7 9 T h e offence o f m a k i n g a false statement, w h i c h is l ikely to injure the reputation o f another, has always been regarded as a serious one. U n d e r R o m a n law, at the time o f the Decemvirs (450 B C ) , written defamation was actually punishable b y death. Further measures o f punishment during the R o m a n era varied from the loss o f the right to make a w i l l , to imprisonment, exile for life, or forfeiture o f property. In the case o f slander, a person could be made liable for payment o f damages . 8 0 T h e A n g l o - S a x o n s likewise imposed a form o f brutal punishment k n o w n as Lex Talionis, w h i c h remained in force until the end o f the reign o f K i n g Canute (1016-39). U n d e r this law it was decreed that i f a m a n was found guilty o f slander his tongue should be 81 removed. These severe sanctions illustrate the importance that has always been placed upon reputation. Ibid, at p.4. 6 Peter Frederick Carter-Ruck, Carter-Ruck on Libel and Slander, (3rd ed., Butterworths, London, 1985), at p. 16. 7 The laws of Judaea. 8 Chapter 7, verse 1. 9 Proverbs 22:1 in the Bible. 0 Carter-Ruck, supra n.76, at p. 17. 1 Carter-Ruck, supra n.76, atp.18. 27 II. V a l u e and Importance o f Reputation A l t h o u g h a g o o d reputation is regarded as an integral and fundamentally important aspect o f every individual it does not expressly receive protection by the Canadian Charter. T h e c o m m o n law, o n the other hand, acknowledging reputation as an inherent personal right, explicitly places the character and g o o d name o f individuals under protection by means o f the tort o f defamation. T h i s law serves to protect various values connected with the individual 's g o o d reputation. 1. Dignitary V a l u e and Pr ivacy First, one's reputation is a core feature o f one's personal dignity and worth as a human being. A c c o r d i n g l y , reputation was given quasi-constitutional status as a reflection o f the interest in individual dignity and privacy in Hill v. Church of Scientology of Toronto*2, where the Supreme Court o f Canada dealt with the assessment o f reputation in detail. After stressing that democracy has recognized the fundamental importance o f an individual and that this importance must be based u p o n the good repute o f a person, the Court stated that a democratic society has an interest i n ensuring that its members can enjoy and protect their good reputation. T h e Court held that a good reputation is closely related to the innate worthiness and dignity o f the individual , and that it represents and reflects this innate dignity, a concept that underlies all the Charter rights. That the individual 's good name is considered to be an interest i n v o l v i n g personality and human dignity also is made clear b y the fact that i n many actions for defamation a substantial award for damages is permitted even i f there is no evidence o f any monetary loss. In that case, protection is provided to the 'personality-aspect' o f reputation. W i t h regard to this, the A m e r i c a n judge P o w e l l explained that 'actual injury is not l imited to out-of-pocket loss. Indeed, the more 28 customary types o f actual harm inflicted by defamatory falsehoods include impairment o f reputation and standing in the community , personal humiliation, and mental anguish and suffer ing . ' 8 4 In emphasizing the importance o f reputation, the Supreme Court went even further in Hill by pointing out the intimate relationship o f reputation and the right to privacy, w h i c h has been accorded constitutional protection in s.8 o f the Charter. (Privacy, in this respect, was said to be grounded in man's physical and moral autonomy and to be essential for the well -being o f the individual . A l s o , the invasion o f privacy can be particularly destructive i f carried out by media establishments because o f the power o f the broadcast media to formulate and plant impressions in the minds o f members o f the audience. 8 5 ) However , the court correspondingly concluded that the publication o f defamatory comments not only is an affront to the individual's dignity but also constitutes an invasion o f this individual's personal p r i v a c y . 8 6 T h e Court's decision probably follows f rom the realization that the h u m a n being is foremost a social animal , designed to l ive in an intensively interactive society and not in isolation. T h e interaction with others, with family , friends and the public at large, is the basis for joy , secure accomplishments and growth as individuals, and its foundation is one's reputation. 8 7 Social relations, however, can be severely undermined b y a bad reputation. In this respect, 'character assassination' deprives the individual o f his social environment and has been said to be the worst (1995) 26 D.L.R. (4th) 129, at pp. 160. Laurence H . Eldredge, The Law of Defamation, (Bobbs-Merill Co., Indianapolis, 1978), at p.2. Gertz v. Robert Welch, Inc., 418 U.S. 323, atp.350. Lepofsky, supra n.72, at p. 198. Ibid, at pp. 160, 163, 164; for privacy also Eldredge, supra n.83, at p.3. Lepofsky, supra n.72, at p. 197. 29 that can be done to h i m apart f rom murder, b o d i l y harm and robbery o f all his possessions. T h e consequences o f spreading defamatory allegations can be serious and include numerous social behaviour mechanisms. F o r instance, the defamation can lead to stigmatisation o f the person concerned, to withdrawal o f social recognition, to social isolation and fundamental loss o f assurance and self -devaluat ion. 8 9 T h e defamed individual practically has no possibility to liberate h i m s e l f f rom the disgrace and isolation fol lowing the attack. T h i s is sometimes a sufficient reason to retire from one's professional and public life, to leave one's home or even commit s u i c i d e . 9 0 T h e free development o f the personality is thereby permanently impeded. A person is strongly affected b y what he believes other people think o f h i m . T h e regard o f those about h i m more completely conditions his behaviour than any other one factor and it likewise adds more to his stature as a person than any other one factor. 9 1 Someone who thinks that he appears to be ridiculous in the eyes o f others can suffer an agony o f emotional distress which may be even stronger than the pain from physical i n j u r y . 9 2 N u m e r o u s subjective harms can be involved in injury to reputation, such as hurt feelings, anxieties worthy o f psychiatric concern, or b o d i l y hurts to be treated b y other medical means, i.e. it can be a major source o f severe psychological stress to undermine someone's capacity to operate in a social environment. Besides actual economic deprivations and loss o f power and influence, the individual above all suffers f rom the loss o f love and affection, respect for and from others as w e l l as possible self respect, potential for self and social fulfilment, generally a loss o f status, or, specifically a loss o f some enjoyed or enjoyable relationships with others. 9 3 In view o f this it can be said that reputation serves the important purpose o f fostering an individual's self-image and sense o f self-8 8 Martin Kriele, "Ehrschutz und Meinungsfreiheit", NJW 1994, 1897. 8 9 BVerfGE 97,391. 9 0 Kriele, supra n.88, at p. 1897. 9 1 Eldredge, supra n.83, at p.12. 9 2 Eldredge, supra n.83, at p.l 1. 9 3 Walter Probert, "Defamation: A Camouflage of Psychic Interests: The Beginning of behavioural Analysis", (1962) 15 Vand. L. Rev. 1173, at p.l 174. 30 worth. T h u s , since a person's standing in the community with his friends neighbours and prospective acquaintances is o f great value he is entitled to have his relations with h i m unimpaired by defamatory h a r m s . 9 4 2. E c o n o m i c V a l u e Apart from having this dignitary value, reputation also has economic worth. T h i s aspect o f the interest in reputation is primari ly a property interest; it refers to the monetary value o f a good name. Reputation plays an important role in achieving and maintaining personal status, prestige and power i n society and as a foundation for success in a professional career. 9 5 A person with a poor reputation, for example, w i l l encounter difficulty f inding and keeping a job and gaining a l ivel ihood since a bad reputation is a deterrent in obtaining almost any k i n d o f lawful e m p l o y m e n t . 9 6 Attacks o n an individual's reputation can generate extensive economic damage, especially i n a time w h e n modern systems o f mass communicat ion have the power to disseminate defamatory statements to a vast number o f persons. S u c h attacks destroy the individual 's efforts and labour carried out to earn a good reputation, for instance to become k n o w n as creditworthy or to achieve a name for quality workmanship. T h i s is particularly serious since such repute is only built up and established s lowly b y integrity, honourable conduct and right l i v i n g but is easy and quickly ruined. T o understand h o w easily reputation can be harmed in an economic sense one only has to contemplate the fol lowing . In a state o f c i v i l society, where people are b o u n d together in a system o f mutual aid, trust and confidence, each individual , considered as a single and isolated 9 4 Eldredge, supra n.83, at p. 12. 9 5 Philip Osborne, The Law of Torts (Irwin Law, Toronto, 2000), at p.354. 9 6 Allen M. Linden, Canadian Tort Law, 6th ed. (Butterworths, Toronto, Vancouver, 1997), at p.657. 31 being, is weak and depends on others for the comforts as w e l l as for the necessaries o f life, for security o f person and property. F o r example, people have to trust their physicians in time o f sickness or their lawyer w h e n confronted with legal p r o b l e m s . 9 7 W h e n it is necessary for a person to select an agent to help h i m i n the varied connections o f life he might not be able to properly exercise his power o f selection on his mere personal knowledge, founded on his o w n actual experience. In all probability, he w i l l place some reliance on the knowledge and information o f others with respect to the abilities, skills, diligence, integrity and honour o f another person w h o m he is interested to employ. F r o m these united experiences o f others he derives a general character o f a certain p e r s o n . 9 8 But this character is susceptible o f injury. T h e report o f one single unworthy or dishonourable act can at once be fatal and destroy a good reputation. E v e n a suspicion o f such an act may lead to evil consequences. A person who is about to deposit a large amount o f money in the responsibility o f a banker, for instance, w i l l certainly be influenced b y an report he casually hears, saying that this particular banker went bankrupt. H e might not be able to verify or refute this report to his satisfaction and the natural result w i l l be that he chooses some other institution. Others who hear o f this account w i l l act accordingly and, thus, a false alarm might be adequate to the destruction o f credit and consequent r u i n . 9 9 T h i s example illustrates the economic dangers existing with respect to reputation. 3. Further V a l u e s O n e more argument made i n favour o f the protection o f reputation is that this protection w i l l foster the freedom o f expression o f l ibel victims. A s a consequence o f being seriously libelled, the victim's credibility in the community might be so substantially undermined that it impairs 9 7 Henry Coleman/Thomas Starkie, Folkard on Slander and Libel, (5th ed., Butterworths, London, 1891), at p.l 1. 9 8 Ibid, at p. 12. " ibid, atp.13. 32 his ability to have others listen to h i m or take h i m seriously. T h e law o f defamation, by protecting the victim's reputation, can counteract such impairment and therefore serves the value o f freedom o f e x p r e s s i o n . 1 0 0 Another point o f v iew is, that protecting reputation is fundamental for democracy. T h e reason suggested is that persons who are more sensitive might be deterred from entering the political and public arena for fear o f being exposed to campaigns o f defamation without being offered adequate protection. Since those who are sensitive concerning their honour and reputation allegedly are the ones with an especially strong sense o f justice and truth whose participation in the democratic life w o u l d be particularly desirable, their deterrence results i n an intellectual and moral loss o f quality i n d e m o c r a c y . 1 0 1 III. F i n a l Remarks It has been said that 'the right o f every m a n to the character and reputation w h i c h his conduct deserves, stands o n the same footing with his rights to the enjoyment o f his life, liberty, health, property and all the comforts and advantages w h i c h appertain to a state o f c iv i l society, inasmuch as security o f character and reputation are essential to the enjoyment o f every other right and privilege incident to such a state.' 1 0 2 O n l y in possession o f a good reputation can a person enjoy the great charm o f social life, w h i c h is constituted by the reciprocation o f good offices, o f mutual aid and friendship. T h e importance o f protecting the individual's reputation has to be kept in m i n d when balancing this value and conflict ing interests. Lepofsky, supra n.72, at p.200. 1 Kriele, supra n.88, at p. 1998. 2 'Folkard', supra n.97, at p!4. 33 C H A P T E R 2: T h e p r e - C h a r t e r L a w o f D e f a m a t i o n T h i s chapter gives a neutral overview o f the c o m m o n law o f defamation as the source o f law that protects the interest in personal reputation, on o f the competing values this thesis deals with. A t this point I w i l l disregard constitutional considerations with respect to defamation law but rather outline its general framework, structure and functioning to ensure a better understanding o f the critical assessment o f this particular c o m m o n law rule, w h i c h w i l l fo l low in chapter six. A . H i s t o r i c a l D e v e l o p m e n t o f the L a w o f D e f a m a t i o n T h e c o m m o n law o f defamation is not the deliberate product o f any period but rather an evolutionary creation, a mass, w h i c h has grown b y aggregation with very little intervention from legislatures. 1 It was influenced by R o m a n law, partly stems from the A n g l o - S a x o n s and is in part based u p o n c o m m o n law and statute. T h e early c o m m o n law consisted merely o f a series o f exceptions to entire license o f speech and therefore was a process o f selection. In the seventeenth century the invention o f the printing press prompted its development and led to the formal distinction between l ibel and slander that does still exist. T o generalize, the written, more permanent form o f defamation is considered to be l ibel , w h i c h is actionable per se, that is, actionable without p r o o f o f temporal loss. Slander, on the other hand, is spoken defamation and in order to recover for slander the plaintiff must plead and prove special damages. 1 In the meantime each province and territory has enacted its own Libel and Slander or Defamation Acts such as for instance the Libel and Slander Act, R.S.B.C. 1979, c.234 in British Columbia. 2 That is, unless the slanderous imputation is actionable per se by way of exception. Certain categories were established that are treated in the same way as libel: the imputation of a crime, the allegation of someone suffering 34 In the middle ages, defamation, at that time only slander, was one o f the most c o m m o n torts brought before the local courts. 3 Before the N o r m a n Conquest i n 1066 both secular and spiritual officials tried their cases in these local , or seigniorial courts. T h e n , as a result o f the separation o f spiritual and temporal courts by W i l l i a m the Conqueror , ecclesiastical courts were established w h i c h administered only the canon law. Since the C h u r c h c la imed the power to correct the sinner for his soul's health, ordinary cases o f defamation at first fell within the ecclesiastical jur isdic t ion . 4 B u t the Church's penance was little calculated to satisfy victims o f defamation. Apart f rom that, the tyranny and corruption o f the ecclesiastical courts aroused antipathy. T h i s , as wel l as the growing power o f the king's courts, contributed to the decline in importance o f the ecclesiastical courts. Eventually , the c o m m o n law courts took u p o n themselves to administer and enforce the whole law o f the land. Act ions for defamation, however, only became c o m m o n in these courts late in the sixteenth century. 5 In 1275 the statutory offence k n o w n as De Scandalis Magnatum, slander o f magnates, was enacted. It marked the beginning o f a series o f statutes w h i c h had a significant bearing upon the law o f defamation. These statutes were cr iminal in character. T h e i r purpose was to preserve the peace and to protect prominent people o f h i g h positions, i.e. they were directed rather against sedition, polit ical scandal and turbulence than against defamation. 6 from a contagious decease (which is likely to cause social rejection) and accusations affecting the plaintiff in his professional capacity, i.e. in his business, trade, profession or office. 3 R.C. Donnelly, "History of Defamation", [1949] Wise. L. Rev. 99, at p. 100. 4 Van Veechten Veeder, "The History and Theory of the Law of Defamation", (1903) 3 Colum. L. Rev. 546, at pp.550; Donnelly, supra n.3, at p.104. There, defamation was punished as a sin; its penance was an acknowledgement of the baselessness of the imputation usually required to be performed in public and an apology to God as well as to the person defamed. 5 Peter Frederick Carter-Ruck, Carter-Ruck on Libel and Slander, (3rd ed., Butterworths, London, 1985), at p. 19; Veeder, supra n.4, at p.552; Donnelly, supra n.3, at p. 106. 6 Veeder, supra n.4, at pp.553; Carter-Ruck, supra n.5, at p. 19. 35 These statutes were administered b y the Star Chamber , a tribunal composed o f the highest dignitaries o f C h u r c h and State. 7 T h e Star C h a m b e r exercised practically unlimited authority, i.e. was a court with unrestrained power, bound by no rules o f evidence. It was determined to get r id o f duell ing, a still c o m m o n method o f vindication, and therefore the law o f defamation Q began to develop q u i c k l y in order to provide a substitute for this ancient remedy. A t any rate, the Star C h a m b e r d i d not concern itself with personal character but with public order. There was as yet no distinction at c o m m o n law between slander and l ibel . In view o f the general illiteracy o f the population, defamatory writing was not widespread and therefore rather harmless. B u t the invention o f the printing press changed the situation. A n uncontrolled press was immediately perceived as a serious threat to the public order and the C r o w n , and from the very beginning C h u r c h and State alike assumed to control the press. Poli t ical and religious discussion was suppressed with the utmost severity. T h e printing o f unlicensed works was punished severely, and printing was further restrained b y patents and monopolies . T h e number o f presses and the whole matter o f printing were strictly limited. But all repressive measures, as wel l as the c i v i l action for defamation, were found to be inadequate to sufficiently suppress the rising tide o f publ ic o p i n i o n . 9 In view o f this, the Star Chamber imported the R o m a n criminal law and first set it forth in the case D e Libellis Famosis in 1609. T h i s case was the formal starting point o f the E n g l i s h law o f libel . T h e period between his case and the abolition o f the Star C h a m b e r in 1641 was the period during w h i c h the foundation o f the modern law o f libel was l a i d . 1 0 7 The Star Chamber consisted of the chancellor, treasurer, lord pivy seal, a bishop, a temporal lord, and the two chief justices. Later the president of the pivy council was added. 8 Donnelly, supra n.3, at p.l 13; Carter-Ruck, supra n.5, at p.20; Veeder, supra n.4, at p.562. 9 Veeder, supra n.4, at pp.561, 568; Donnelly, supra n.3, at pp.117. 1 0 Donnelly, supra n.3, at p.l 18; Veeder, supra n.4, at p.566. 36 T h e R o m a n law had two sets o f provisions for defamation, the comparatively m i l d law o f injuria and the severe provisions o f the libellus famosus.u L ibel lous songs 1 2 , w h i c h fell within the latter category, were punished as a crime. T h e R o m a n libellus famosus was not based upon the form o f the publication but upon the character o f the matter published, the extent o f its diffusion and its anonymous nature, i.e. there was no distinction between speech and w r i t i n g . 1 3 But the Star C h a m b e r adopted provisions o f this law without regard to R o m a n limitations. T h e Star C h a m b e r introduced a new k i n d o f actionable defamation based upon mere form and furnished it wi th certain additions, such as the principle that l ibel is punishable as a crime because it tends to a breach o f peace, in order to apply the law to its o w n u s e . 1 4 T h i s principle o f cr iminal l ibel a imed directly at printing and was an instrument o f suppression. T h u s , the R o m a n law o f the libellus famosus became part o f the E n g l i s h c o m m o n law. T h e Star C h a m b e r began to punish the crime o f political l ibel , i.e. at first, the formal distinction between spoken and written w o r d concerning defamation o f a polit ical k i n d . But then the Star C h a m b e r extended its jurisdiction to non-polit ical libels. Eventually , the distinction between libel and slander was introduced into c i v i l law and finally, tort damages were awarded to the person d e f a m e d . 1 5 T h e presumption o f damages in case o f a defamatory writing added yet another means o f censorship. 1 1 Veeder, supra n.4, at p.563. 1 2 For centuries the song and ballad writers were the only spokesmen of the people in political affairs. They gave voice to popular criticism, discontent and rejoicing. The music added its own significance; Veeder, supra n.4, at p.554. 1 3 Veeder, supra n.4, at pp.563-565. 1 4 Veeder, supra n.4, at pp.566, 567; Donnelly, supra n.3, at p ! 18. 37 B . T h e C u r r e n t L a w o f D e f a m a t i o n I. T h e General F r a m e w o r k o f the L a w o f Defamation Defamat ion is essentially a strict liability tort. T h e defendant's liability exists regardless o f his intention to make a defamatory statement. It is o f no relevance whether the defendant was aware o f the defamatory meaning the statement conveyed or i f he took reasonable care to ensure that it was not defamatory. F inal ly , it does not make any difference whether he intended to refer to the plaintiff, or to cause h i m any damage i f in fact he did . T h e only exception, where intention or negligence on the part o f the defendant is necessary, concerns the act o f publishing the defamatory communicat ion since the fact o f publication alone is actionable. So whatever someone publishes he publishes at his o w n risk. T h e plaintiff has to establish three things to make out a pr ima facie cause o f action. T h e material he complains about must be defamatory, it must refer to the plaintiff and it must be published to a third person. O n c e it is established that defamatory words were published o f the plaintiff the burden shifts to the defendant who can maintain that one o f the c o m m o n law defences applies in the case. In this respect, a defamatory statement is not actionable i f it for example constitutes the truth, is privi leged or is fair comment etc. T h e defences are very important and central to most defamation litigation. T h e y have the function o f balancing the values o f reputation and freedom o f expression, i.e. they 'give substance to the principle o f freedom o f expression' . 1 6 Donnelly, supra n.3, at p . l 18; For the first time the distinction between libel and slander in civil action was drawn in King v. Lake (1670), 145 E.R. 552 and it was finally settled in Thorley v. Kerry (1812) 128 E.R. 367. 38 II. T h e D e f a m a t i o n A c t i o n 1. A Defamatory Statement First o f all , regardless o f the form o f publication, the utterance complained o f has to be defamatory. A s long as those to w h o m it is published do not understand the communicat ion in a defamatory sense there w i l l be no cause o f action. In general a defamatory statement may be defined as one that tends to lower the esteem or respect in w h i c h a person is held by others in the community or as 'publication, w h i c h tends to injure reputation in the popular sense'. There is no ultimate test to determine whether a communicat ion is defamatory. Instead there exist a variety o f views as to how to define the term 'defamatory' . O n e classic judic ia l formula describes defamation as 'calculated to injure the reputation o f another by exposing h i m to hatred, contempt or ridicule or causes h i m to be shunned or a v o i d e d ' . 1 7 In another case 1 8 the definition 'false statement about a m a n to his discredit' was offered. B u t there is no single definition that is precise enough to capture every aspect o f libel without including too m u c h or omitting something that ought to be included. A t any rate, the communicat ion has to tend so to harm the reputation o f a person as to diminish the respect and confidence in w h i c h others hold this p e r s o n . 1 9 O f course defamation is not l imited to an individual 's private sphere like a person's reputation for honour, honesty or integrity. Included are also disparagements o f someone's reputation in 1 6 Dickson J. in Chernesky v. Armadale Publishers Ltd., (1978), 90 D.L.R. (3rd) 321, at p.343. 17 Parmiter v. Coupland (1860), 6 M. & W. 105, at p.108. 18 Scott v. Sampson (1882), 8 Q.B.D. 491, atp.503. 1 9 In Murphy v. LaMarshK'[(1970), 73 W.W.R. 114, at p.l 18] Wilson C.J. tried to illustrate this understanding by suggesting that it is defamatory to attribute a shameful action, character, course of action or condition to a man such as accusing him of having stolen something, being dishonest, living on the avails of prostitution or having the pox. For example it has been held to be defamatory to suggest that someone permits immorality to be practised by others, that someone has engaged in conduct that is disgraceful or unlawful, or that a person lacks integrity. Actionable is also to say someone is bankrupt or insolvent or to accuse a person of misusing or abusing a position of trust. It was even held to be defamatory to call someone drunk or hideously ugly, or suggest he is a homosexual. 39 business, trade, profession or office. However , the manner and surrounding circumstances in w h i c h the words are spoken play an important role i n deciding whether an utterance can be regarded as defamatory. 2 1 Since one's reputation is regarded as a 'personal ' attribute, only defamation o f l iv ing people is actionable. Injured relatives or friends, who neither have a derivative cause o f action nor a direct c la im for injury to their feelings, 2 2 cannot bring forward an action for defamation o f a deceased person unless they are personally defamed. Apart from that, non-natural persons m a y also be entitled to recover damages. T h e business interests or g o o d w i l l o f a corporation certainly can be damaged b y defamatory attacks such as imputation o f insolvency or dishonest conduct o f their affairs. T h u s , a corporation m a y sue for defamation as long as the defamation has been directed against its 'business character' and not only against the individuals associated with i t . 2 3 Another question is that o f what standard to apply to determine whether a statement is defamatory. T h e people that have to think less o f the person concerned are c o m m o n l y referred to as 'the right-thinking members o f society ' 2 4 or as the 'reasonable or ordinary members o f the p u b l i c ' 2 5 , w h i c h is problematical in so far as an increasing diversity o f views and attitudes exists in modern and multicultural society, m a k i n g it difficult to determine a single standard o f 'right-Therefore it is defamatory to accuse someone of incompetence or to imply a lack of creditworthiness. In Caldwell v. McBride [(1988), 45 C.C.L.T. 150] it was even held to be defamatory to accuse a professional gambler of cheating with the explanation this accusation was injurious to his professional reputation and would disrupt his source of income. 2 1 So for instance statements of abuse or insulting name-calling made in anger might not be perceived as being defamatory if the speaker intended to abuse and is so understood by the hearer, e.g. it makes a difference whether someone deliberately makes an insulting remark or lets himself be carried away in a quarrel. 2 2 John G. Fleming, The Law of Torts, (LBC, Toronto, 1998) says at p.585 that 'defamation does not survive for the benefit of the plaintiffs estate.' 23 Price v. Chicoutimi Pulp Co., (1915) 23 D.L.R. 116, atp.122 (S.C.C.). 24 Sim v. Stretch, [1936] 2 All E.R. 1237, at p!240. 25 Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 38 O.R. (3rd) 97 at 106. 40 thinking ' or 'ordinary ' . T h e question whether a person is liable cannot only depend on the view o f a majority. A statement can also be defamatory i f it tends to lower a person in the estimation o f members o f a segment o f society as long as it concerns the estimation o f a substantial and respectable segment o f society, i.e. the views o f minorities are to be taken into consideration. H o w e v e r , the courts restrict this to what those o f 'fair average intelligence' 2 7 w o u l d think, or 'ordinary decent folk in the community , taken in general'. T h e words complained o f often can be understood in different senses, one being defamatory but the other innocent. D e c i s i v e is the meaning w h i c h w o u l d be reasonably attributed to the words b y ordinary sensible people, without special knowledge, who are neither unusually suspicious nor unusually n a i v e 2 9 o n condition that they are capable o f understanding the publication in a defamatory sense. It is the natural and ordinary meaning that is given to words in a defamatory publication; 'what the ordinary m a n w o u l d infer without special k n o w l e d g e ' . 3 0 T h i s includes implications, w h i c h a reasonable reader guided b y general knowledge w o u l d draw from the w o r d s . 3 1 Apar t f rom this, the publication is to be seen in its context and taken as a whole, not the offending part isolated. T h e circumstances in w h i c h a communicat ion is made, time and place or even the speaker's tone o f voice, accompanying gestures or facial expressions, may make a difference. T h e y m a y reveal that words, w h i c h seemed to be defamatory at first glance in fact, are innocent. 2 6 See Peck v. Tribune Co. (1909), 214 U.S. 185, at p.190; Quigley v. Creation Ltd., [1971] I.R. 269, at p.272. 27 Slayter v. Daily Telegraph (1908), 6 C.L.R. 1, at p.7. 28 Gardiner v. Fairfax (1942), 42 S.R. (N.S.W.) 171, at p.172. Certain views have to be excluded since a person may be defamed in the eyes of citizens who are not right thinking at all. It can appear that views of a small minority are so anti-social that their recognition by the courts would be unworthy. 29 Lewis v. Daily Telegraph, [1964] A.C. 234, at p.249 (per Lord Reid), or at p 286 (Lord Devlin). 30Lord Reid in Lewis v. Daily Telegraph, supra n.29, at p.258; also in Toley v. J.S. Fry & Sons Ltd., [1931] A.C. 333, 'inference drawn by the ordinary man or woman', 'natural inference'. 31 Jones v. Skelton, [1963] 1 W.L.R. 1362, at p.1370 (Lord Morris). 41 However , there are also words, w h i c h prima facie seem to be innocent, but become capable o f a defamatory meaning b y reason o f the circumstances surrounding their p u b l i c a t i o n . 3 2 Such impl ied or allusive statements are i n general called i n n u e n d o . 3 3 (Each innuendo is a separate cause o f act ion. 3 4 ) T h e plaintiff must specifically plead a legal innuendo i f he thinks the ordinary meaning o f the publication does not sufficiently reflect the defamatory element. Furthermore, he has to prove the underlying facts or circumstances g iv ing the words their additional meaning, i.e. the extrinsic facts. H o w e v e r , he neither has to prove that the defendant knew o f these special circumstances that make up the innuendo nor that there actually was a publication to someone who understood the defamatory m e a n i n g . 3 5 T h e plaintiff only has to show that reasonable people with knowledge o f the extrinsic facts w o u l d have understood the communicat ion to be defamatory . 3 6 2. Reference to the Plaintiff : Identification A n essential element o f the tort o f defamation is that the words complained o f are published 'of the plaintiff , i.e. that the plaintiff is identified in the statement. In most cases the plaintiff is named but he m a y also be identified b y description or context, or extrinsic facts m a y be adduced to show that the defamatory statement was spoken o f and concerning h i m . Especial ly i f the They may, for instance, have a technical or slang meaning other than the ordinary one that may not be apparent to everyone. Their secondary meaning may depend on some special knowledge not everybody possesses, or it might be derived from the words by reading between the lines. Perhaps the special meaning can only be understood with the aid of additional, extrinsic information. 3 3 Courts differentiate between 'popular' (or 'false') and 'legal' (or 'true') innuendoes. The first is included in the natural and ordinary meaning of words and can be interpreted as defamatory by reasonable persons without the establishment of extraneous facts. The latter arises in cases where the defamatory sense of the statement results from facts or circumstances, which are not part of general knowledge, i.e. it has an additional meaning beyond the ordinary and natural one. B.V.H. Rogers, Winfield & Jolowicz on Tort, (15th ed., Sweet Maxwell, Toronto, 1998) at p.403 and Lewis Klar, Tort Law, (2nded., Carswell, London, 1996), at p.557. 34 Grubb v. Bristol United Press Ltd., [1963] 1 Q.B. 309, atp.327. 35Since Hulton & Co. V. Jones, [1910] A.C. 20 it is, according to Scrutton L.J., "impossible for the person publishing a statement which, to those who know certain facts, is capable of a defamatory meaning...to defend himself by saying: T.. .did not mean to injure the plaintiff.' " 42 plaintiff is not explicitly mentioned the test o f identification is whether (some) reasonable people, being aware o f the defamatory meaning, w o u l d take the v i e w that this defamation refers to the plaintiff; whether an ordinary reader w o u l d reasonably identify the plaintiff as the person defamed. In v iew o f this the intention o f the publisher is not to be taken into account. T h e defamer's intent or negligence in m a k i n g reference to the plaintiff is irrelevant. In Youssoupoff v. Metro-Goldwyn-Meyer39 it was held that a publisher, who had never heard o f the particular person concerned and w h o d i d not have the intention to defame anyone, is liable i f 'reasonable people k n o w i n g some o f the circumstances w o u l d take the libel complained o f to relate to the p l a i n t i f f T o a similar effect is the case o f Hulton v. Jones40, w h i c h dealt with a publication defamatory o f a person w h o m the defendants thought to be fictitious while , u n k n o w n to them, there in fact existed a person with this name. T h e defendant's honest bel ief that no such person existed, apart from a lack o f intention to defame, was not regarded as a defence. 3. Publication T h e c i v i l law o f defamation, in contrast to the criminal law, is concerned with injury to reputation rather than with insult. Saying defamatory remarks to another person's face without any third person hearing it m a y injure the addressee's feelings but does not cause any loss o f esteem in the eyes o f others or affect his reputation. Therefore the communicat ion to at least one person other than the person defamed is essential. Publication o f the defamation is the actionable wrong. 36 Hough v. London Express Newspaper Ltd., [1940] 2 K.B. 507 (C.A.). 3 7 Simon L.C. in Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), at p.l 18. 38 Morgan v. Odhams Press, [1971] 1 W.L.R. 1239 (H.L.); Taylor v. Massey (1891), 20 O.R. 09 (C.A.). 3 9 (1934), 50 T.L.R. 581 Scrutton L.J. at p.583. 43 T h i s does not require that the communicat ion be made to a large audience. Publication to a single individual is sufficient as long as it is a third party, other than the plaintiff himself, who actually heard or read the statement. M o r e o v e r this individual must have understood what was communicated so that it is not sufficient i f the offending words were spoken in a language u n k n o w n to the listener. 4 1 W i t h regard to the publication o f a defamatory matter the onus is on the plaintiff to prove that there was responsibility on the part o f the d e f e n d a n t 4 2 If the latter intended publication or i f publication is due to a lack o f care, he is liable. A n accidental publication, however, is not actionable. 4 3 So i f the defendant can clear h imsel f o f negligence, i.e. i f the exercise o f reasonable care could not have avoided the publication, he can escape responsibility. But the case Byrne v. Deane44 shows that his duty o f care can go very far. A c c o r d i n g to the holding there a person m a y even become responsible for a libel , when, being aware o f the defamatory publication and having the power to remove, he fails to exercise this power. Responsibil i ty o f a person in control o f premises therefore m a y derive from k n o w i n g l y permitting a libel to remain after reasonable opportunity to remove i t . 4 5 E v e r y participant i n the publication is liable. So liability extends to those who composed the libel including press agencies or advertisers, and to those who are responsible for its distribution [1910] A.C. 20 (H.L.); although it might have been of influence that in this case there was some recklessness on the part of the defendants: the plaintiff actually had previously worked for them! 41 Economopoulous v. A.G. Pollard Co. (1914), 105 N.E. 896 (Mass. S.C.). 4 2 Lamont J. in McNichol v. Grandy, [1932] 1 D.L.R. 225. 4 3 Fleming, supra n.22, at p.599. 4 4 [1937] 2 All E.R. 204. 4 5 Ibid, at p.838; Apart from the fault element with respect to publication, liability in general does not depend on the intention of the defamer. As mentioned before it is irrelevant if he meant to convey a defamatory meaning at all or to refer to the plaintiff. Even accidental typographical or similar errors with the result that a defamatory meaning is conveyed, though unintentionally, do not release the defendant from liability. (For example in Upton v. Times-Democrat (1900), 104 La. 141 the word „cultured", referring to a gentlemen, mistakenly was substituted by "coloured") The absence of fault, which is intention, negligence or recklessness, is of no relevance. 44 and dissemination, no matter to w h i c h degree they were involved. Moreover , every single communicat ion o f a defamatory matter is treated as a separate publication, so even i f a copy o f a book that contains defamatory words is sold years after it originally appeared a new cause o f action might ar ise . 4 7 E a c h person who repeats a libel is liable for it. A plaintiff may take different actions against different defendants for publication o f the same defamatory matter. T h e reason for this principle is that the new publication further impairs the p l a i n t i f f s reputation. (However , publications might be summed up and damages assessed for the entire issue. 4 8 ) Republication, o n the other hand, is something different. U s u a l l y the defendant is not responsible i f another person republishes a defamatory statement. U n d e r certain circumstances this changes, for example when it was foreseeable 4 9 that others w o u l d publish or republish the statement, or i f the republication was authorized or intended by the originator. F o r instance, a person who gives an interview to a newspaper reporter w i l l be liable for the publication o f his statements i n the newspaper (as long as it is an accurate account o f what has been sa id . ) 5 0 III. Defences A number o f reactions are available for the defendant to face the p l a i n t i f f s action. H e can deny that the words complained o f were published at all or at least b y h i m , that they refer to the plaintiff or that they are capable o f being reasonably understood in a defamatory sense. H e can However, there is a distinction between producers and subordinate distributors. Primary participants are those actively engaged in the dissemination, for instance writers, editors and publishers. They underlie a stricter standard of liability. On the other hand, mechanical disseminators such as newsagents, booksellers or libraries, who take a subordinate part as pure distributors, are treated more benevolently. According to Romer L.J. in Vizitelly v. Mudie's Select Library Ltd. ([1900] 2 Q.B. 170, at p. 180] such a subordinate distributor may not be liable on condition that he had no knowledge of any defamatory content in the material he disseminated in the ordinary way of his business, that he had no reason to be suspicious that the material contained defamatory material, and that he has exercised reasonable and practical steps to scrutinize the material. Since the distributor still is liable prima facie the burden of proof is on him to displace the presumption of publication and escape liability. 4 7 See Duke of Brunswick v. Hamer (1849), 14 Q.B. 185. 48 Toomey V. Mirror Newspapers (1985), 1 N.S.W.L.R. 173. 49 Sims v. Wran, [1984] 1 N.S.W.L.R. 317. 45 also plead that he was an innocent disseminator or that the words were published unintentionally. A s far as it concerns an action for slander the defendant can allege that special damages are necessary and that these either were not shown or that they were too remote. 5 1 Apart from this, the law o f defamation designated special defences such as justification, i.e. that the words complained o f were true in substance and in fact. Furthermore it can be pleaded that they were published o n an occasion o f absolute, or qualified privilege respectively, or that they were fair comment o n a matter o f public interest. F i n a l l y apology and retraction are possible as partial defences. Those defences are o f great importance i n the law o f defamation, especially since the requirements for a statement to be regarded as defamatory are low. Without the defences to defamation, all critical public and private communicat ion w o u l d suffer from censorship and as a result the right to criticise or voice unpopular social or political opinions w o u l d be very strongly restricted. Therefore the mentioned defences have the function o f protecting the value o f free speech and o f restoring a balance between the protection o f the reputation and the freedom o f expression. 1. Justification Truth is valued too m u c h to attach a penalty to its publication. Therefore it is a complete defence to a c i v i l action for defamation. Af ter all , defamation protects the p l a i n t i f f s reputation and i f the reputation can be damaged by the truth it is unworthy o f protection b y the law. T h i s plaintiff is not entitled to recover damages. T h e defendant has to prove the truth o f his statement since its falsity is presumed once it is 50 Hay v.Bingham (1905), 11 O.L.R. 148 (C.A.); Douglas v. Tucker, [1952] 1 S.C.R. 275. 5 1 Raymond Brown, The Law of Defamation in Canada, (Vol.1, Carswell, Toronto, 1987), at p.360. 46 shown that the statement is defamatory. T h e substance o f the statement has to be true; namely the substance o f all material statements contained in the libel and every meaning attributed to the words complained of. Where the plaintiff relies on a legal innuendo, the defence o f justification must meet this innuendo, i.e. not only the literal meaning but also the inferential one, or the innuendo has to be true. 5 3 There must be a substantial justification o f the whole in order to succeed. B u t it is not necessary to prove every minute detail and to establish the truth o f each and every w o r d used by the defendant. Inaccuracy o f minor details is therefore harmless . 5 4 However , i f the defamation consists o f a number o f different allegations and the defendant is not in the position to prove the truth o f every relevant component, the plaintiff w i l l be entitled to judgement even though the unproved charge alone might not have caused appreciable damage i n view o f the truth o f the . 55 rest. T o allege that one merely repeats a rumour is no justification, even i f expressing doubts or disbelief, and regardless o f whether one is giving a verbatim account o f what one has been t o l d . 5 6 F i n a l l y the intent o f the defendant when m a k i n g the true but defamatory statement is irrelevant so that malice does not defeat the defence o f justification. In this respect, the c o m m o n law gives priority to free speech instead o f investigating the publisher 's motives, especially since emphasis lies o n injury o f the reputation and not the intention o f the defendant. i2Beevis v. Dawson, [1957] 1 Q.B. 195; Belt v. Lawes (1882), 51 L.J.Q.B. 359, atp.361. 53 Irish People's Assurance Society v. City of Dublin Assurance Co Ltd., [1929] I.R. 25. 5 4 The justification must meet 'the sting of the charge' as said in Edwards v. Bell (1824), 1 Bing. 403, at p.409; Lord Shaw in Sutherland v. Stopes, [1925] A.C. 47 held at p.79 that 'there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel...'. 5 5 Fleming, supra n.22, at p. 611. 56 Stubbs Ltd. v. Mazure. [1920] A.C. 66; Wake v. Fairfax, [1973] 1 N.S.W.L.R. 43. 47 2. Privilege O n some occasions the public interest in promoting a frank communicat ion is greater than the interest o f protecting an individual 's reputation. A s L o r d Scrutton said in More v. Weaver51: "there are certain relations o f life in w h i c h it is so important that persons engaged in them should be able to speak freely that the law takes risk o f their abusing the o c c a s i o n . . . " These are referred to as privi leged occasions. Absolute privilege provides a complete immunity from liability on the grounds o f public pol icy even i f the statement is made with malice. Qual i f ied privilege, on the other hand, only offers conditional immunity and is defeated by m a l i c e . 5 8 A t any rate, the privilege attaches to the occasion and not to particular speakers or the contents o f a c o m m u n i c a t i o n . 5 9 a) Absolute Privilege Absolute Privilege is designed to secure efficient functioning o f governmental institutions, i.e. to facilitate the operations o f all branches o f government b y absolutely protecting speakers in certain situations so that they are able to speak and to carry out their duties freely without fear o f liability for defamation. Those speakers do not have to face an action in defamation, regardless o f their motive or the truth o f their statement 6 0 - they are totally i m m u n e from liability. Protected b y this privilege are judic ia l and parliamentary proceedings as w e l l as high executive 5/[1928] 2 K.B. 520. 5 8 Apart from this, there are also privileged reports. While it is in general no defence to simply report defamatory allegations of another person there are certain circumstances under which reports receive the protection of absolute or qualified privilege. Thus privileged are fair and accurate reports of official (parliamentary or judicial) proceedings open to the public. The reason for this exception can be found in the public interest in being fully informed on the administration of public affairs; the public has a right to be informed about all aspects of proceedings to which it has the right of access. Those of the public who were not able to obtain admission due to lack of capacity have a right to know what had happened just as those who were present. 59 Dingle v. Assoc Newspapers, [1961] 2 Q.B. 162, at p. 188; Minter v. Priest, [1931] A.C. 558, at 571-572; The question of whether an occasion gives the privilege is a question of law and has to be determined by the judge. Then the jury has to decide the question of fact whether it actually was a privileged communication, i.e. whether the party has used the privilege properly. 6 0 The issue of truth technically only arises where the defendant pleads the defence of justification. Otherwise a statement, once regarded to be defamatory, is legally assumed to be false as the case proceeds. 48 communications but also marital communications, (i) Judicial Proceedings First o f all , communications made in the course o f not only judic ia l proceedings but also o f quasi-judicial proceedings are covered b y absolute privilege based o n considerations o f public p o l i c y and convenience . 6 1 T h i s privilege is not confined to statements made in court but it also extends to steps i n preparation o f judicial proceedings . 6 2 Included is every person concerned in judic ia l proceedings such as judge, jury, advocates (i.e. barristers, solicitors and parties appearing o n their o w n behalf), witnesses and parties participating. Participants o f judicial proceedings i n general should not be influenced b y fear o f possible defamation action. F o r instance, to expose a judge to the risk o f actions f rom every disappointed suitor w o u l d affect his efficiency and freedom as a judge doing his d u t y . 6 3 T h e same applies for a counsel who otherwise w o u l d be threatened by actions o f persons whose conduct he m a y have d e n o u n c e d 6 4 and witnesses who might be deterred f rom testifying because they fear actions brought forward b y persons w h o m they give evidence against . 6 5 Professional communications made between solicitor and client in preparation o f litigation as wel l as those between potential witnesses and parties or their legal advisers are also p r o t e c t e d . 6 6 Furthermore, the privilege extends to 'quasi-legal authorities' 6 7 , i.e. to tribunals, w h i c h carry out 61 Royal Aquarium and Summer and Winter Gardens Society v. Parkinson, [1892] 1 Q.B. 431, at p.442. 6 2 Fleming, supra n.22, at p.618. aMore v. Weaver, [1928] 2 K.B. 520, Lord Scrutton, atp.522. 64 More v. Weaver, ibid, at p.522. 65 Seaman v. Netherclift (1876), 2 C.P.D.53; Hargreaves v. Bretherton, [1959] 1 Q.B. 45. 66 More v. Weaver, supra n.63; Watson v. Mc'Ewan, [1905] A.C. 480; Hasselblad v. Orbinson, [1985] Q.B. 475 (C.A.). However, protected are only those remarks that are 'relevant' to the issue. Especially in the relationship between solicitor and client the privilege only extends to matters related to the litigation, excluding irrelevant gossip dropped in the course of the interview. 67 Sussman v. Eales (1985), 33 C.C.L.T.156 (Ont. H.C.). 49 quasi-legal functions, equivalent to those o f a court o f justice. O n c e an occasion is recognized as absolutely privileged, no cause o f action can be maintained for defamation. M a l i c e does not affect the defence o f absolute privilege. A l t h o u g h this rule might prevent actions in cases where the conduct o f the protected speaker was otherwise actionable, it is preferable to having numerous actions brought against persons honestly acting in the discharge o f their duties, w h i c h w o u l d impair the judicial process. However , to be protected, the utterance must be relevant to the issue and reasonably related to the subject o f the judic ia l i n q u i r y . 6 9 Entirely extraneous matters w i l l not be protected. (ii) Parliamentary Proceedings W i t h regard to parliamentary proceedings, the public has a right to expect a frank and vigorous debate in its democratic institutions, w h i c h might be destroyed b y the fear o f liability, involving caution. Therefore freedom o f political debate receives its acknowledgement through absolute privilege. T h i s privilege extends to any communicat ion made b y a M e m b e r o f Parliament in the exercise o f his duties during the course o f Parliamentary proceedings as long as made on the floor o f the H o u s e o f C o m m o n s . 7 0 N o t protected are communications made outside the • 71 proceedings o f that b o d y so i f a member repeats his statement (previously made inside) outside Parliament it generally w i l l not be covered by the privilege. (iii) H i g h Executive Communicat ions T h e reason, w h y h i g h executive communications are specially protected is, once more, to secure 6 8 To qualify as a quasi-judicial proceeding the tribunal must possess certain characteristics such as for example the power to adjudicate upon and determine legal rights between parties or to require their attendance, or the power to hear evidence under oaths, impose punishments, administer fines and enforce orders. Brown, supra n.51, at p.420 6 9 Allan M. Linden, Canadian Tort Law, (6th ed., Butterworth, Toronto, 1997), at p.700. 7 0 This common law rule found its reinforcement in sec.51(2) of the Constitution Act, R.S.B.C. 1996, c.66. 50 the free and fearless discharge o f high public duty - here for the executive department o f government. Therefore a defamatory statement made b y a high executive officer is absolutely privi leged i f he is acting i n the performance o f his off icial duties relating to the affairs o f state. T h e extent o f this part o f privilege is somewhat uncertain. W h i l e communications between Ministers o f the C r o w n 7 2 are certainly protected as long as they are made in the course o f public duties and as long as the subject matter relates to state affairs, not all public servants are so privileged. T h e privilege only attaches to " h i g h officers o f State" . 7 3 (iv) Mari ta l Communica t ions Final ly , communications between husband and wife enjoy absolute privilege to protect and respect the confidentiality o f the matrimonial relat ionship. 7 4 Apart from this there is the fiction o f the spouses being regarded as forming an integrated whole with the result that publication is missing. However , defamatory remarks one spouse makes about the other are o f course not protected. b) Q u a l i f i e d Privilege O n certain occasions and for specific public pol icy reasons the law affords protection for untrue and defamatory statements by qualified privilege, permitting a person to say something which otherwise might be actionable. Cases o f qualified privilege are based o n the principle that the publisher o f a defamatory matter should not be entirely free from responsibility but he should be protected in so far as he has acted in good f a i t h . 7 5 Therefore this defence only confers conditional immunity ; the defendant loses his privilege i f it is shown that he published the 71 Stopforth v. Goyer (1978), 20 O.R. (2nd) 262; Winfield & Jolowicz, supra n.34, at p.429. 72 Chatterton v. Secretary of State of India, [1895] 2 Q.B. 189 (C.A.). 7 3 Fleming, supra n.22, at p.620. 7 4 Linden, supra n.69, at p. 703; Fleming, supra n.22, at p.621. 7 5 John King, The Law of Defamation in Canada, (Carswell, Toronto, 1907), at p.493. 51 statement with malice . Moreover , the publication has to be made to serve the legitimate purpose o f the privi leged o c c a s i o n . 7 7 O n l y those statements w h i c h are relevant to the interest that justifies the privilege are protected. 7R In Adam v. Ward L o r d A t k i n s o n describes such a privileged situation as one "where the person who makes the communicat ion has an interest or a duty, legal, social or moral , to make it to the person to w h o m it is made, and the person to w h o m it is made has a corresponding interest or duty to receive i t . " So a legitimate duty and interest relationship is necessary, which is conceivable i n three constellations. Either one person has a legal, social or moral duty to speak to another with a legitimate interest to receive the information or he has a legitimate interest in giv ing the information to someone with a duty to receive it, or, finally, both sides have corresponding interests in providing and receiving the information ( c o m m o n interest). T h e first constellation focuses on the duty-aspect and concerns statements made pursuant to a duty (either legal, social or moral) to a person who has a corresponding duty or interest in receiving it. T h e interest in the information has to be r e c i p r o c a l . 7 9 Otherwise the defence o f qualified privilege fails - even i f the defendant honestly believed that the recipient possessed the required interest. F o r the existence o f the duty it is not relevant whether the publisher believed it was there. T h e actual facts are d e c i s i v e . 8 0 W h i l e a legal duty can easily be determined, the more difficult question is what is understood by 76 Hill v. Church of Scientology of Toronto, (1995) 126 D.L.R. (4th) 129 at p.171. 7 7 Fleming, supra n.22, at p.622. 7 8 [1917] A.C. 309, atp.334. 79 Bureau v. Campell, [1928] 3 D.L.R. 907 (Sask. C.A.); Globe & Mail Ltd. v. Boland (1960), 22 D.L.R. (2nd) 277. 80 Watt v. Longsdon, [1930] 1 K.B. 130, where Watts believed himself obliged to disclose the immoral conduct of a man to his wife and therefore interfered as a stranger into the affairs of spouses. 52 a moral or social duty. A c c o r d i n g to L o r d L i n d l e y this means " a duty recognized by people o f ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal p r o c e e d i n g s . . . " In v i e w o f this rather broad and indefinite definition it is understandable that courts seem to be more incl ined to acknowledge such a duty i f the statement is made in answer to an inquiry rather than volunteered, w h i c h also indicates that the information is o f significance for the recipient. Qual i f ied privilege lies for example where a former employer gives character references o f a dismissed employee in response to the request o f a person who proposed to employ h i m , or where one businessman provides information after inquiry about the financial situation o f a prospective customer . 8 2 S u c h an inquiry, however, is only one factor to be taken into account. Volunteered statements can also be regarded as uttered in discharge o f a moral or social duty in certain relationships such as employer and employee, where the latter m a y tell work related things, or o f course parent and chi ld , where a father can warn his daughter against her suitor. 8 3 T h e second constellation concerns statements where a person seeks to protect his o w n legitimate interests, or one he shares with someone else, or even the interest o f another person. F o r instance, someone w h o has been subject to an attack on his reputation has a clear interest in responding to this attack to restore his damaged reputation and those who have heard the previous attack have a moral duty to receive the response. Therefore a statement i n self-defence is protected b y qualified privilege i f it is made in reply to an attack upon one's o w n character or conduct, or to protect one's proprietary interests. T h e defendant m a y even protect the interests ' In Stuart v. Bell, [1891] 2 Q.B. 341, atp.350. 2 Beevis v. Dawson, [1956] 2 Q.B. 165; Robshaw v. Smith (1878), 38 L.T. 423. 3 Cooke v. Wildes (1855), 119 E.R. 504; Bordeaux v. Jobs (1913), 6 Alta L.R. 440, at p.443. 4 Folk v. Smith, [1941] O.R. 17 (C.A.); Pleau v. Simpsons-Sears Ltd. (1976), 75 D.L.R. (3rd) 747 (C.A.). 53 o f his employer since he has a personal interest in the business involved . T h e defence is restricted to those statements w h i c h are necessary to meet the initial attack. 8 6 T h i s means that only such information related to the attack is protected. T h e reply must not become a counterattack. A s mentioned before, the communicat ion is only protected so long as the recipient has a legitimate interest or duty to receive it but the requirement o f reciprocity needs to be seen in context regarding the nature o f the original attack. If an individual 's reputation was attacked in public he is entitled to respond to the general public , so for instance i f the press has been the means to publish the initial attack the defendant is free to respond by the same m e d i u m . In the case o f a ' c o m m o n interest' the publisher and the recipient share a legitimate c o m m o n or mutual interest in communicat ing and receiving the information. It has to be more than just QQ curiosity or news-gathering and usually concerns pecuniary interests, arising from association between the parties for business purposes. Protected under qualified privilege are for example communications among shareholders, discussions between members o f religious congregations, complaints b y tenants to the landlord concerning the conduct o f other tenants, the flow o f information between members o f trade and professional associations or unions, or between QQ creditors for the same debtor. A n y legitimate interest worthy o f protection by law w i l l be sufficient. B u t the privilege only covers communications that relate to issues o f c o m m o n concern to the members o f the group. If a statement goes b e y o n d the group's interest or is 85 Penton v. Calwell (1945), 70 C.L.R. 219; similar Gillett v. Nissen Volkswagen Ltd., [1975] 3 W.W.R. 520. 86 Whitaker v. Huntington (1980), 15 C.C.L.T. 19 (B.C.S.C.). 87 Penton v. Calwell (1945) 79 C.L.R. 219; Adam v. Ward, [1917] A.C. 309. 88 Howe v. Lees (1910), 11 C.L.R. 361, at p. 398. 89 Telegraph Newspaper v. Bedford (1934), 50 C.L.R. 632 at p.658; Slocinsky v. Radwan (1929), 144 Atl. 787 (N.H.); Toogood v. Spyring (1834) 149 E.R. 1044; Thompson v. Amos (1949), 23 A.L.J. 98; Smith Bros. & Co. v. W.C Agee & Co. (1912), 50 So.647 (Ala). 54 communicated to someone who is not member o f the group, i.e. w h o does not have the c o m m o n interest, the qualif ied privilege is los t . 9 0 Apart from this, once more a corresponding interest is necessary so that it is not sufficient i f only the recipient had an interest in hearing the information. Noteworthy is that in the past courts generally have refused to recognise a c o m m o n interest between newspapers and readers. A l t h o u g h all privilege can be traced back to some public interest in the publication, the mere fact that a matter is o f public interest does not necessarily mean that the discussion o f it is privileged. In that respect media have no greater protection from defamation action than any other member o f the p u b l i c . 9 1 A c c o r d i n g l y , the public has to have a legitimate interest i n receiving the information while the publisher w o u l d require a corresponding duty to publish the report. Because o f this requirement o f reciprocity there are rarely any cases in w h i c h a publication to the w o r l d at large w i l l attract the protection o f qualified privilege. A privilege has only been recognized under certain circumstances, for example in cases o f public warnings against dangers such as contaminated food. Apart from such exceptions the fact that a matter is o f public interest has i n general not been regarded as sufficient to constitute a privi leged occasion at c o m m o n law o f defamation. Generally, the press has to rely on the defence o f fair comment, w h i c h only refers to comments based on true facts but not to mere statements o f facts . 9 4 90 Guise v. Kouvelis (1947) C.L.R. 102. 9 1 King, supra n.75, at p.279. 92 Camporese v. Partem (1983), 150 D.L.R. (3rd) 208 (B.C.S.C.); Blackshaw v. Lord, [1984] Q.B. 1. 93 Globe & Mail Ltd. v. Boland, [1960] S.C.R. 203; Winfield & Jolowicz, supra n.33, at p.445. 9 4 However, recently there has been a development towards acknowledging public interest further. Within the scope of the case of Moises v. Canadian Newspaper Co. [(1996) 24 B.C.L.R. (3rd) 211] the court deals at great length with the question whether qualified privilege should be extended for newspapers against the background that 'the difficulties involved in verifying the truth of allegations made by others have a chilling effect upon the willingness of newspapers to publish statements that are in fact true.' In Parlett v. Robinson [(1986) 30 D.L.R. (4th) 247] the court did not consider the publication of a statement of a Member of Parliament to the public at large through the 55 A s already mentioned, there is some special reason o f public p o l i c y in all cases o f qualified privilege w h y the law accords immunity from a defamation suit. T h e defendant might have some public or private duty w h i c h justifies the communicat ion o f a statement, or some interest o f his o w n w h i c h he is entitled to protect b y doing so. However , it is not an absolute privilege, and i f the defendant for some reason abuses the occasion w h i c h gives rise to the privilege, instead o f legitimately using it, he loses the defence . 9 5 T h e occasion can be misused in different ways. O n e w a y is the excess o f privilege, where the words complained o f are outside the scope o f the privilege. T h e defendant might exceed his privilege by going beyond the limits o f his duty or interest, for example b y m a k i n g statements that are completely unrelated to the privileged subject matter. There is no protection with regard to statements that are not relevant to the purpose for w h i c h the privilege is given, or that are k n o w n to be untrue . 9 6 A c c o r d i n g l y , unnecessarily attacking another's character to defend one's o w n character is not covered by the p r i v i l e g e . 9 7 O r the defendant loses the privilege i f he goes beyond the audience that can legitimately receive the information b y publishing and communicating the information to those who have no legitimate interest or duty i n receiving i t . 9 8 T h e n the publication itself is unjustifiably wide. It is a different case i f a person, who was the vic t im o f an attack in publ ic , has the right to defend himsel f before the same audience. Apart f rom this the circle o f legitimate recipients in general is media as unduly wide. They held the member had a duty to express his concerns and they regarded the electorate in Canada as a group that had a bona fide interest in the published matter. 95 Wattv. Longsdon, [1930] 1 K.B. 130, Scrutton L.J., atp.143. 96 Adam v. Ward, [1917] A.C. 309, at pp.320-21, 'Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the privilege or the right or the safeguarding of the interest which creates the privilege will not be protected'; Klar, supra n.33, at p.577. 97 Botiuk v. Toronto Free Press (1995), 126 D.L.R. (4th) 609, at p.628. 98'Jones v. Bennett, [1969] S.C.R. 277, where the defendant, a Premier, had spoken defamatory words during a meeting of party supporters in spite of his knowledge of the presence of reporters. Assuming his awareness and 56 more limited. Excess o f privilege is a matter for the determination o f the trial judge while the jury has to decide whether the defendant acted with m a l i c e . " Secondly, malice defeats the qualified privilege, i.e. the defence is lost i f the communicat ion is published malic iously . T h e term 'mal ice ' in this context needs to be understood in a broad sense, i.e. it not only covers cases where the defamer is motivated b y spite, i l l w i l l , hatred or the desire to inflict harm for its o w n sake. A b o v e that it includes misuse o f the privileged occasion for other improper purposes. S u c h a purpose can be any indirect motive - other than honest bel ief in the truth - that is not connected to the purpose for w h i c h the privilege was g i v e n . 1 0 0 In Royal Aquarium and Summer & Winter Garden Society Ltd. v. Parkinson™1, acting bona fide (i.e. without malice) was understood in the sense that the defendant uses the privi leged occasion for the proper purpose and does not abuse it. Therefore, according to L o r d Esher, the question is whether the occasion is used honestly or is abused. Furthermore it was held that a privileged occasion might be abused i f the communicat ion is the result o f some motive other than that o f carrying out one's duty. T h e defendant there acted in 'gross and unreasoning prejudice' with regard to the subject matter and not s imply from consideration o f his duty. H e had 'allowed his m i n d to get into such a reckless state o f prejudice that he was regardless o f the interests o f the other person, and whether what he was saying was true or false.' Clues to prove malice m a y be extrinsic or intrinsic. So for example the existence o f personal even intention that the reporters would publish his statement he had exceeded his privilege by communicating 'to the world'. 9 9 Linden, supra n.69, at p.712. 100 Jones v. Bennett, [1969] S.C.R. 277; Hill v. Church of Scientology, (1995) 126 D.L.R. (4th) 129, atp.171. 1 0 1 [1892] 1 Q.B. 431; see Watt v. Longsdon, [1930] 1 K.B. 130, at p.155; 'the defendant was in fact giving effect to his malicious or otherwise improper feelings towards the plaintiff and was not merely using the occasion for the protection....'. 57 animosity m a y be extrinsic evidence, but only i f it allows the conclusion o f improper motive on the part o f the p u b l i s h e r . 1 0 2 T h e lack o f honest belief or reckless disregard for the truth o f the statement generally is conclusive evidence for m a l i c e . 1 0 3 M a l i c e m a y also be inferred from the contents o f the allegation itself, from the language i n w h i c h the statement is expressed . 1 0 4 A t any rate, that one participant in the publication acted malic iously does not affect the privilege pleaded b y another part ic ipant . 1 0 5 E a c h participant has an independent right to c la im privilege and the misuse o f one cannot be imputed to the other. 3. Fair C o m m e n t Resulting from the nature o f the subject matter, the public has a legitimate interest in government activity, public services and institutions, the conduct o f public figures, political debate and public affairs in general. A free discussion o f matters o f public interest is essential in a democratic society, and honest criticism supports the proper discharge o f public d u t i e s . 1 0 6 Therefore, fair comment on matters o f public interest is protected from liability for defamation, as long as it is based on facts. T h e right o f fair comment furthermore extends to matters o f art such as music , paintings, literature or theatrical performances. In such cases, the character o f a person, the artist, is not the object o f criticism but his work, w h i c h he voluntarily displayed in public and submitted to public attention and criticism. T h e defence o f fair comment requires the defendant to establish that the statement itself consists o f comment, that this comment is based on fact, that the subject matter is one o f public interest and finally that the comment is fair. T h e defence fails, however, i f the plaintiff is able to prove malice o n the part o f the defendant. 1 0 2 Fleming, supra n.22, at p.638. 103 McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, at p.321; Winfield & Jolowicz, supra n.33, at p.435. 1 0 4 Fleming, supra n.22, at p.638. 105 Stephens v. WA Newspaper (1994), 182 C.L.R. 211, at p.253; in spite of Smith v. Streatfeild, [1913] 3 K.B. 764. 106 Whitford v. Clarke, [1939] S.A.S.R. 434, at p.439 (Napier J.). 58 T h e first requirement is that the statement has to be one o f comment or opinion and not one o f fac t . 1 0 7 Since the law o f defamation is not concerned with the intention o f the publisher the statement's classification depends on h o w it w o u l d be interpreted b y the ordinary unprejudiced 108 reader or listener. T h e conveyed imputation has to be understood as a subjective assessment or opinion o f the defendant. T h e reason for this distinction is that it makes a difference whether the recipient can recognize that the remark expresses the personal v iew o f the publisher with w h i c h he m a y or m a y not agree and whether he has the chance o f forming his o w n judgement. T h e statement is comment i f an opinion is expressed on the basis o f provided facts, but alleging something without referring to facts w i l l in general be treated as a statement o f fact. F o r example, to say that someone is an immoral person w o u l d not qualify as comment. O n the other hand, to describe exactly someone's conduct and say this was immoral is opinion. However , it is sufficient to indicate with reasonable clarity b y the words themselves, seen in their context and surrounding circumstances, that the utterance has to be understood as c o m m e n t . 1 0 9 Therefore it is possible to refer to facts, w h i c h are notorious, l ike for example the conduct o f p o l i t i c i a n s , 1 1 0 without explicitly including them in the communicat ion. Decis ive is whether the imputation conveyed can be understood as comment. B u t i f the expression is ambiguous and can be understood in either way the risk goes to the debit o f the publisher. However , the comment has not only to be based on facts but those facts have to be true and undistorted otherwise the comment itself cannot be f a i r . 1 1 1 It is not enough i f the defendant s imply believed his facts to be t r u e . 1 1 2 C o m m e n t i n g o n the basis o f mistaken facts made at a privileged occasion, on the other hand, is treated differently. T h e i r disclosure is in the public 1 0 7 If facts are published, the defendant can only plead the defence of justification. 108 Clarke v. Norton, [1910] V.L.R. 494, atp.500. 109 Radio 2 UE Sydney v. Parker (1992), 29 N.S.W.L.R. 448 (C.A.); Kemsley v. Foot, [1952] A.C. 345, at p. 357. 110 Bjelke-Petersen v. Burns, [1988] 2 Qd. R. 129. " ' Linden, supra n.69, atp.714. 59 interest . 1 1 3 T h e subject matter o f the comment must be a matter o f public interest, i.e. one in which the public is legitimately interested or concerned. A s already mentioned this can be governmental actions and the conduct o f those involved i n the political process, public affairs such as sports, arts, religious events, the conduct o f all public figures etc. But the free expression is restricted to the public dimension o f those activities and persons. O n l y the conduct or work o f public officials and figures is o f public interest and not their private life or morals. T h e publication o f matters unrelated to this public dimension does not fall under the protection o f fair comment. In this case the p l a i n t i f f s interest in privacy p r e v a i l s . 1 1 4 T h e comment must be a fair one. Fai r in this context does not necessarily mean that the comment has to be reasonable or balanced. Instead fairness depends on the circumstance that the defendant honestly expresses his o p i n i o n . 1 1 5 E v e n strong language and harsh critique is covered b y the defence, as wel l as exaggerated, obstinate or prejudiced r e m a r k s . 1 1 6 So long as the expressed o p i n i o n is honestly held b y the publisher, it is protected - provided an honest-minded person might h o l d this view o n the facts it is based o n . 1 1 7 Newspapers do not receive any special treatment in this respect, w h i c h is illustrated in the case Chernesky v. Armadale Publishers Ltd.us It dealt with a letter to the editor, published by the newspaper, that described the attitude o f the plaintiff as racist. Whether this was the honest 112 Douglas v. Stephenson (1898), 29 O.R. 616; Price v. Chicoutimi Pulp Co. (1915), 51 S.C.R. 179. 113 Cook v. Alexander, [1974] Q.B. 279, at p.288 (C.A.); Mangena v. Wright, [1909] 2 K.B. 958, at p. 977 (commenting on excerpt from Parliamentary paper); Grech v. Odhams Press, [1958] 2 Q.B. 275, at p.285. 114 Mutch v. Sleeman (1928), 29 S.R. (N.S.W.) 125, at p. 137 (MP called a wife beater). 1 , 5 Chernesky v. Armadale Publishers Ltd. (1979), 90 D.L.R. (3rd) 321, atp.330. 1 1 6 Ibid at p.325; Fleming, supra n.22, at p.653. 117 Merivale v. Carson (1887), 20 Q.B.D. 275, at p.281 (Lord Esher). 60 belief o f the two writers o f the letter was not clear. T h e defendant publisher d id not agree with the contents o f the letter. A c c o r d i n g to the majority o f the Supreme Court , the defence o f fair comment failed due to the lack o f honest bel ief i n the allegation contained in the letter on the part o f the n e w s p a p e r . 1 1 9 Final ly , a comment distorted b y malice cannot c la im the protection o f the defence o f fair comment. It is the p l a i n t i f f s task to prove that the defendant acted mal ic iously , i.e. to show that the comment was not designed to serve the purpose o f expressing one's honest and real o p i n i o n . 1 2 0 In this connection mere hostility or i l l w i l l alone is not enough to answer the question o f malice i n the affirmative. 4.) Consent . A p o l o g y and Retraction T h e plaint i f fs consent to the publication o f defamation w i l l protect the defendant from liability as a complete defence. It is possible that the plaintiff instigated or invited the defamatory statement himself , for example b y starting rumours about h imsel f or p r o v i d i n g false information to a newspaper. O r he m a y try to provoke the defendant to defame h i m for the purpose o f suing h i m afterwards. In cases like that the plaintiff w i l l be deemed to have consented to the 1 , 8 (1979) 90 D.L.R. (3rd) 321. 1 1 9 The minority criticised this decision for creating an unreasonable restriction of freedom of expression. They argued that, if newspapers are limited to publish opinions with which they agree, competing ideas will no longer gain access although the free and general discussion of public matters is fundamental to a democratic society. Therefore they emphasised the distinction between the question of fairness and the question of malice. In the first step it needs to be determined whether the statement can be regarded as one an honest person, although prejudiced, might make in the circumstances. In a second step the burden of proof shifts to the plaintiff to show that the publisher acted maliciously. They continued that, while it normally is the strongest possible evidence of malice if the plaintiff is able to show that the defendant does not hold the opinion expressed, cases where publisher and author are not identical have to be treated differently. The fact that the publisher did not agree with the contents of the comment does not give information about malice on his part. Here it should be sufficient if the comment was objectively fair and the individual publisher was not actuated by malice. It should not be necessary that the publisher himself had the same point of view as the writer. Winfield & Jolowicz, supra n.33, at p.427 is of the same opinion. 1 2 0 Fleming, supra n.22, at p.654. 61 defamatory p u b l i c a t i o n . 1 2 1 Final ly , there are the partial defences o f apology and retraction. T h e y are o f particular interest to the m e d i a in view o f the strict liability i n cases o f libel . T h e y do not affect liability itself but they operate to mitigate damages. If the defendant apologized to the plaintiff for making the defamatory statement this fact w i l l be reflected as mitigation in the award o f damages. A c c o r d i n g l y , i f the defendant refrains from apologizing, damages can end up being relatively high as for example in the Hill-case or i n the Cassidy-case.122 Retraction, a statutory concept 1 2 3 , is o f significance o n l y for newspapers and broadcasters. O n condition that there has been a complete and full retraction, fulf i l l ing the requirements o f the respective statute, liability is restricted to the p l a i n t i f f s actual damage. 1 2 1 Fleming, supra n.22, at p.627; Brown, supra n.51, at p.389. 122 Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129, where the defendant did not attempt to apologize after being aware that his allegations were false and therefore ended up with a total of $ 1.6 millions in damages. In Cassidy v. Daily Mirror Newspapers Ltd., [1929] 2 K.B. 331 the defendant persisted in doing right after he learned the truth in front of the trial instead of apologizing. 1 2 3 See sec.7 ofthe Libel and Slander Act, R.S.B.C. 1996, c.263. 62 C H A P T E R 3: F r e e d o m o f E x p r e s s i o n a n d the C h a r t e r H a v i n g described the c o m m o n law o f defamation as the source o f law that protects reputational interests, it is n o w time to have a look at the Canadian Charter of Rights and Freedoms w h i c h guarantees freedom o f expression. I w i l l briefly place the Charter in its historical context and explain under w h i c h circumstances it applies. Afterwards I w i l l concentrate on freedom o f expression, describing the scope o f this fundamental right and h o w it is subject to limitations according to s. 1 o f the Charter. A . I n t r o d u c t i o n o f the C h a r t e r I. Historical Context Before the Charter, Canada's primary constitutional document was the British North America Act, 1867 (renamed the Constitution Act, 1867 in 1982) w h i c h contained two major features: a parliamentary system o f government and federalism. T h e first, i.e. the supremacy o f Parliament, refers to the unlimited power the elected representatives o f the people, assembled in Parliament, have to make the law. T h e second element concerns the divis ion o f legislative powers between the Parliament o f C a n a d a and the provincial legislatures. T h e role o f the courts was limited to deciding cases by interpreting the law, basically without the authority to invalidate duly enacted laws, except when they acted as referee in deciding whether legislative matters fell within federal or provincial jurisdiction. T h e n they could invalidate a provincial law that came within federal jurisdiction or vice versa. 63 A l t h o u g h the Constitution Act, 1867 secured certain democratic and minority rights, it did not include a b i l l o f rights. However , as a consequence o f the increased interest in bills o f rights fo l lowing the Second W o r l d War , Parliament enacted the Canadian Bill of Rights in 1960 w h i c h , as an ordinary act o f Parliament, was merely a statutory instrument. Since it d id not apply to the provincial legislatures and moreover had been given little effect even in its application to the federal government, this b i l l proved inadequate in its protection o f fundamental rights. F inal ly , with the enactment o f the Constitution Act, 1982, Canada received its Canadian Charter of Rights and Freedoms. A s part o f the Constitution the Charter can only be altered by constitutional amendment 1 , it applies to both federal and provincial levels o f government and it expressly overrides inconsistent statutes. Var ious rights are identified and embodied in the Charter such as the fundamental freedoms o f conscience, religion, thought, belief, opinion, expression, assembly and association as w e l l as democratic rights, mobi l i ty rights, legal rights, the right to equality and language rights. However , the guarantees set out in the Charter are not absolute. T h e Charter itself expressly acknowledges that rights can be limited to protect other individual rights or broader community interests by including s . l in its provis ions . 3 A t any rate, the Charter has given the courts immense new power to protect the rights and freedoms o f individuals and minorities, and at the same time l imited the powers o f the federal Parliament as w e l l as the provincial legislatures b y including an explicit supremacy clause 4 and ' According to s.52(3) the constitutional amending procedure must be employed to alter the Constitution, of which the Charter is Part I. 2 S.52(l) declares that any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect. 3 S. 1 allows the state to limit the rights and freedoms provided that the limit is 'reasonable', 'prescribed by law' and 'can be demonstrably justified in a free and democratic society'. 4 Supra n.2. 64 al lowing extensive judic ia l review. II. A p p l i c a t i o n o f the Charter T h e question concerning the application o f the Charter is addressed i n s.32(l) o f the Charter, w h i c h provides that the Charter applies to 'the Parliament and government o f Canada in respect o f all matters within the authority o f Parliament.. . ' and to the 'legislature and government o f each province i n respect o f all matters within the authority o f the legislature o f each province . . . ' Foremost, the Supreme Court made it clear that the Charter is confined to governmental action, i.e. that it applies only where the government allegedly infringes a right or freedom guaranteed in the Charter . 5 T h i s fol lows f rom the proposition that the Charter was set up to regulate the relationship between individuals and government, with the intention o f restraining government action in order to protect the individual . Therefore, i f the act under challenge comes from an entity that is part o f the government, the Charter w i l l apply whether or not the action is invoked in public or private litigation. In Dolphin Delivery, the Court further determined that s.32(l) refers to the legislative, executive and administrative branches but not the judiciary branch . 6 T h i s conclusion was supported by a textual analysis o f s.32(l) . Because that provis ion refers to the Parliament and legislatures separately from the 'government' it treats them as specific branches, separate f rom the executive branch o f government. It does not expressly refer to the judiciary as a branch o f government to w h i c h the Charter applies. T h u s , a different treatment o f the judic ia l versus the legislative, 5 R.W.S.D.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; reaffirmed in McKinney v. University of Guelph, [1990] 3 S.C.R. 229; also Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156. 6 R.W.S.D.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, para.31. Subsequent cases such as B.C.G.E.U. v. B.C., [1988] 2 S.C.R. 214 or Rahey v. The Queen, [1987] 1 S.C.R. 588 might appear inconsistent with this holding in 65 executive and administrative branches o f government is justified. In the opinion o f the Supreme Court , the term 'government' is not used in the generic sense to refer to the whole o f the governmental apparatus o f the state, but rather only in the sense in w h i c h one generally speaks o f the Government o f Canada or o f a province, meaning the executive or administrative branches o f government. 7 A c c o r d i n g l y , all statutory laws and regulations are subject to Charter scrutiny, as is every exercise o f statutory authority. T h e Charter also applies i f the act complained o f comes f rom an entity w h i c h is deemed to be part o f government. W i t h respect to such 'quasi-governmental' bodies, difficulties sometimes arise. F o r instance, the Charter does not apply to universities, even though they receive government funding and are created b y statute8, but community colleges have been regarded as part o f government . 9 In general, the result depends on the degree to w h i c h the entity is controlled b y government ministers or their officials in their day-to-day operations. 1 0 However , even a private entity can be subject to the Charter, namely in respect o f certain inherently governmental actions, i.e. w h e n its activity can be said to be 'governmental' in nature. T h i s is in order to prevent governments f rom escaping Charter scrutiny by entering into private 'arrangements' and delegating the implementation o f their policies to private entities. 1 1 A t any rate, the Charter w i l l not be applicable to private litigation between private parties unless one party invokes or relies upon the exercise o f governmental action to produce an infringement Dolphin since they also include the judicial branch, at least in so far as the criminal sphere is concerned. This issue will be raised in chapter six. 7 Dolphin Delivery, ibid. 8 McKinney v. University of Guelph, [1990] 3 S.C.R. 229. 9 Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570. 1 0 Robert Sharpe and Kathrine Swinton, The Charter of Rights and Freedoms, (Irwin Law, Toronto, 1998), at p.63. In Douglas College, for instance, the college was established by the government to implement government policy. Its board was appointed and removable at pleasure by the government which also could direct its operation by law. The college performed acts of government in carrying out its function. 11 Eldrige v. British Columbia, [1997] 3 S.C.R. 624m at para. 103. 66 o f the Charter right o f another. 1 2 A s already mentioned, court orders were not considered as governmental action. T h e y were excluded f rom the scope o f s.32(l) although the Supreme Court stressed in Dolphin Delivery that courts are b o u n d by the Charter and by all law. T h e i r exclusion was explained by referring to the function o f courts as neutral arbiters when applying the law, i.e. they are not involved as contending parties in private l i t igat ion. 1 3 M c l n t y r e J., who delivered the judgement, was concerned that the scope o f Charter application w o u l d be widened to virtually all private litigation i f court orders were regarded as an element o f governmental intervention sufficient to invoke the Charter since all cases must end, i f carried to completion, with an enforcement order . 1 4 T o private litigation, however, the Charter was not supposed to apply. W h i l e governmental action could effectively be restricted only b y constitutional limits, private conduct is regulated b y the tort system and b y other laws, w h i c h are better designed for this purpose and contain more details as to the appropriate scope o f private rights and obligations. W i t h respect to the c o m m o n law, the Court recognized, that the Charter must apply to it because o f s.52(1) o f the Constitution Act, 1982, w h i c h refers to 'any law' in declaring it o f no force in case it is inconsistent with the provisions o f the Constitution. T h e b o d y o f the c o m m o n law, w h i c h in great part governs the rights and obligations o f the individuals in society, definitely is 'any l a w ' . 1 5 However , the Court then proceeded to restrict this rul ing by concluding that the Charter w i l l apply to the c o m m o n law only i n so far as a governmental actor is relying on it to abrogate Charter rights, i.e. only when the c o m m o n law is the basis o f some governmental 12 R. W.S.D.U. v. Dolphin Delivery Ltd., supra n.5, at para.37. With respect to abuse of private power, the authority for legal control is said to be best left with the legislature. For courts it would be inappropriate to assume responsibility for all issues of social justice for all elements of society. Sharpe/Swinton, supra n.10, at p.62. 13 Dolphin Delivery, ibid, para.34. 1 4 Ibid, para.34. 67 action w h i c h (allegedly) infringes a guaranteed right or freedom.16 T h e c o m m o n law in and o f itself does not demonstrate a sufficient connection to government to invoke the Charter's protection. T h u s , between private parties the Charter w i l l not apply to the c o m m o n law because o f the absolute requirement for governmental action. In this respect, the decision i n Hill v. Church of Scientology of Toronto determined that in the context o f c i v i l litigation i n v o l v i n g exclusively private parties, the Charter w i l l indirectly apply to the c o m m o n law, namely to the extent that the c o m m o n law is found to be inconsistent with Charter v a l u e s . 1 7 T h e issue in such cases accordingly is whether the principles underlying the c o m m o n law rule are consistent with the values enshrined in the Charter. T h i s aspect is important for the question o f the Charter's impact on the c o m m o n law o f defamation and w i l l be discussed in greater detail in chapter six. B . Structure o f s.2(b) A n a l y s i s I. T h e Scope o f F r e e d o m o f Expression 1. M e a n i n g o f Expression In contrast to the approach fol lowed b y the U . S . Supreme Court , the Supreme Court o f Canada chose the broadest possible definition o f expression: protected is freedom o f expression, not 18 freedom o f speech. " E x p r e s s i o n " , thereafter, has been held to include every activity that conveys or attempts to convey m e a n i n g . 1 9 N o t only the freedom to speak, write or publish ideas 1 5 Ibid, para.23. 1 6 Ibid, para.32. 1 7 (1995) 126 D.L.R. (4th) 129,atp.l57. 18 Ford v. Quebec, [1988] 2 S.C.R. 712, at p.766: Rights and freedoms should be given a large and liberal interpretation. 19 Irwin Toy v. Quebec, [1989] 1 S.C.R. 927, at p.968; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp.729, 826. 68 is protected, but arts and physical gestures or acts can also be covered. If an activity has expressive content it prima facie falls within the scope o f the guaranteed free expression. This definition excludes hardly anything and places all forms o f expression o n an equal footing. A n explanation for this broad approach can be found in the acceptance o f three different rationales for freedom o f expression w h i c h cover various facets o f expression. T h e democracy rationale comprises political expression as being essential for the w o r k i n g o f a parliamentary democracy since this form o f government cannot exist without the freedom to express new ideas and to put forward opinions about the functioning o f public institutions. B y acknowledging the truth discovery rationale and the 'marketplace o f ideas', the Court broadened the scope o f protection to the expression o f ideas concerning all branches o f human knowledge. F i n a l l y , regarding expression as intrinsic worth for the individual , as an important element o f personal self-fulfilment and autonomy, results in the broadest possible definition. T h i s last rationale covers more than speech, namely expression through h u m a n activity such as, for instance, art, music or dance . 2 1 Important is that the right o f freedom o f expression extends to the listener as well as to the speaker. It also protects the individual f rom being required to express a particular view, i.e. there is a right not to express . 2 2 L a m e r J. said in Slaight Communications Inc. v. Davidson,23 that It-win Toy, supra n.19, at p.970. 2 1 Human activity most of the time combines physical and expressive elements. It is, however, possible that activity is purely physical without the intention to carry a message. Certain day-to-day tasks can generally not be regarded as attempts to convey meaning, such as parking a car, for instance. In such cases it is incumbent on the plaintiff to show that his act in fact was performed to convey a meaning (Irwin Toy v. Quebec, supra n.19, at p.969). So in the example of parking a car, a plaintiff who parked without authority in a zone reserved for spouses of government employees might argue that he did this as part of a public protest, to express his anger at his exclusion from the allocation of a limited resource. In that context his activity has expressive content. 22 National Bank of Canada v. R.C.U., [1984] 1 S.C.R. 269, at p.295 (Beetz J.); R. v. Big M Drug Mart, [1985] 1 S.C.R.295, Dickson at p.336 about the meaning of freedom; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. 2 3 [1989] 1 S.C.R. 1038, atp.1080. 69 ' f reedom o f expression necessarily entails the right to say nothing, or the right not to say certain things' . T h e f o l l o w i n g examples serve to get a general idea o f the scope o f freedom o f expression according to the Supreme Court o f Canada. C o m m e r c i a l expression was held to be covered by the protection o f s.2(b) in Ford v. Quebec.24 T h e Court rejected the argument that the Charter was not intended to protect economic interests and instead emphasised the intrinsic value o f advertising. T h e recipients o f information provided b y advertising are enabled to make informed economic decisions, w h i c h is important with regard to individual fulfilment and autonomy. Therefore, protection is not only afforded to commercial advertising and the advertisers but at the same time to the recipients o f advertising. Later court decisions fol lowed this view and also regarded commercial advertising as protected b y freedom o f expression. Freedom o f expression is also involved in cases o f picketing since any form o f picketing contains at least some element o f conveying meaning. Certainly it intends to put the person picketed under pressure and cause h i m economic loss. But apart from that it conveys the message to the general public that the organisation picketing is ' i n v o l v e d in a dispute, that it is seeking to impose its w i l l on the object o f the picketing, and that it solicits the assistance o f the [1988] 2 S.C.R. 712, at p.766, where the issue was the constitutionality of a provincial law restricting the language of advertising. 2 5 For example: Irwin Toy, supra n.19, where a legislative act prohibited commercial advertising directed at persons under thirteen years of age, or Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, where the constitutionality of a provision was challenged that explicitly restricted dentists' advertising. However, the fact that expression is commercial is not necessarily without constitutional significance, as can be seen later on, because the circumstance of how close expression is to the core values of freedom of expression (political or social participation, truth or self-fulfilment) may effect the sec.l analysis. 26 R. W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 537, at p.587; see also B.C.G.E.U. v British Columbia, [1988] 2 S.C.R. 214. 70 public in honouring the picket l ine . ' T h e picketing tries to persuade customers to refrain from doing business with the person picketed. Therefore, picketing is an activity with expressive content and receives Charter protection, as long as it is peaceful. Since postering and leafleting offer an effective and relatively inexpensive way o f communicat ing polit ical , cultural or social ideas w h i c h especially helps the less powerful members o f society to give voice to their opinions and to support their concerns, this expressive activity also receives Charter p r o t e c t i o n . 2 8 Communica t ions w h i c h promote hatred against an identifiable group are covered b y freedom o f expression as w e l l . T h e y contribute to vigorous and open debate essential to democratic government and they foster a vibrant and creative society through the marketplace o f ideas . 2 9 A s stressed in Irwin Toy,30 the type o f meaning conveyed is irrelevant to the question o f whether an expressive activity is protected b y sec.2(b). Since communications promoting hatred convey a meaning and are intended to do so by those who make them, they cannot be deprived o f the protection accorded b y sec.2(b), no matter how offensive the content o f a statement may be. T h e content o f an expression cannot deprive it o f its constitutional protection. 2 Dolphin Delivery, ibid, atp.588. 28Ramsden v. Petersborough, [1993] 2 S.C.R. 1084 (the decision furthermore dealt with the question whether postering on public property is protected as well and came to the conclusion that this is the case at least on some occasions); Ford v. Quebec, [1988] 2 S.C.R. 712 (where the Supreme Court held that a law requiring public signs and posters to be printed only in French violated sec. 2 (b)); United Food and Commercial Workers, Local 1518 (U.F.C.W.) v. Kmart Canada Ltd., [1999] S.C.J. No.44 (where members of the appellant union peacefully distributed leaflets at secondary sites during a labour dispute with two KMart stores. The Court cited the Labour Relations Board in para.27 and said it is 'permissible for employees to publish letters, issue press releases, take out newspaper advertisements or use billboards in order to publicize the labour dispute and attempt to gain public sympathy.' They stressed how important it is for workers to disseminate accurate information in a lawful manner with regard to a labour dispute). 29 R. v. Keegstra, [1990] 3 S.C.R. 697, at p.732; In this case a high school teacher was charged under the Criminal Code with unlawfully promoting hatred against Jews by making anti-Semitic statements to his students. The Court had to decide whether the particular section of the Criminal Code infringed freedom of expression. 71 O n the same ground, the distribution o f pornographic material was held to be within the scope o f freedom o f expression. In creating a (pornographic) f i l m for instance, the maker o f the f i l m is consciously choosing particular images, w h i c h together constitute the f i l m , and thereby is attempting to convey some meaning. T h e content o f the f i l m and the reaction o f the audience are o f no relevance for the question o f whether the activity is protected. 3 2 Similar ly , deliberate falsehoods have been regarded as protected, because the truth or falsity o f such communications can only be determined by referring to its content. 3 3 Apart from the concept o f content-neutrality it w o u l d be difficult to conclusively determine the falsity o f a statement. A n d even i f a statement is false it could still have a value since 'the challenge o f this false idea to received understanding promotes a re-examination that vitalizes t r u t h . ' 3 4 In view o f this, defamatory expression that is untrue should deserve protection as wel l . However , I w i l l come back to this issue i n chapter six. 2. T h e V i o l e n c e - E x c e p t i o n There is one restriction placed o n the protection o f conduct o f expressive nature: violence as a form o f expression is excluded from sec.2(b) protect ion. 3 5 A l t h o u g h acts o f violence, for example terrorist attacks, can obviously be intended to convey a meaning, the Supreme Court 3 0 [1989] 1 S.C.R. 927. 31 R. v. Butler, [1992] 1 S.C.R. 452 dealt with the constitutionality of the obscenity provisions of the Criminal Code. 3 2 Ibid, atpp.489-90. 3 3 In R. v. Zundel, [1992] 2 S.C.R. 731 the section of the Criminal Code, which punished the act of wilfully publishing a statement, that the publisher knows is false and that causes or is likely to cause injury or mischief to a public interest, infringed sec. 2 (b) of the Charter. Publishing a pamphlet alleging that the killing of 6 million Jews during the Holocaust is a myth therefore fell within the guarantee of freedom of expression. 3 4 Kent Greenawalt, "Free Speech Justifications' in: 'Constitutional Law in Canada" by Magnet, (4th ed., vol.2, Yvon Blais Inc., Montreal, 1989), at p.283. 35 Irwin Toy, [1989] 1 S.C.R. 927, atp.970;/?. v. Keegstra, [1990] 3 S.C.R. 967, atp.731. 72 decided that they w o u l d not receive constitutional protection. T h e justification for this exception is that violence is inimical to the rule o f law on w h i c h all rights and freedoms depend and to the values supporting freedom o f expression. 3 7 W h i l e freedom o f expression exists to ensure the enhancement o f the freedom to choose between ideas or courses o f conduct, violence is coercive and takes away free choice. It undermines the freedom o f action. Initially, threats o f violence had also been unprotected. In R. v. Keegstra , however, the Court refrained from excluding threats o f violence. T h e starting point has to be that activities conveying or attempting to convey meaning are regarded as expression for the purpose o f sec.2(b). Further, such expressive activities cannot be excluded from the scope o f guaranteed free expression o n the basis o f the content or meaning c o n v e y e d . 4 0 Yet , a communicat ion can only be classified as a threat o f violence b y reference to the content o f its meaning (as opposed to its form). T h e decision stated clearly that the violence exception refers to expression communicated directly through physical harm. W h a t m a y lead to violence is not itself violent so threats o f violence are covered b y freedom o f expression. A c c o r d i n g l y , the determination o f the scope o f freedom o f expression is governed b y the principle o f content-neutrality. II. L imita t ion o f F r e e d o m o f Expression If the activity o f the litigant who alleges an infringement o f freedom o f expression is covered by sec.2(b), the next step is to determine whether there has been a violation o f the asserted right. In Richard Moon criticizes this decision of the courts in his article "The Supreme Court of Canada on the structure of Freedom of Expression Adjudication", (1995) 45 University of Toronto Law Journal 419. He sees that the Court might have felt that inclusion of acts of violence in the Charter protection would give them a 'small but undeserved amount of legitimacy'. But he suggests proceeding according to the Court's general approach, i.e. to define expression broadly (which means to include violent acts) and use sec. 1 to deal with difficulties. 37 R. v. Keegstra, [1990] 3 S.C.R. 697, atp.731 (Dickson) andp.830 (McLachlin). 38 R. W.S.D.E. U. v. Dolphin Delivery, [1986] 2 S.C.R.537, at p.588. 3 9 Supra n.35, at p.733 (Dickson C.J.); the activity of wilfully promoting hatred did not fall within the violence exception according to the majority of the Court. 40 Irwin Toy, supra n.19, at p.969. 73 Irwin Toy the Supreme Court described h o w to proceed in this respect: the initial test o f constitutional validity is to examine the purpose o f legislation. If the government's purpose was to impose a limit on expression, there has been a violation o f sec.2(b) and a sec. 1 analysis is required to determine whether this limitation is consistent with the provisions o f the Constitution. In case the governmental action fails this purpose test, i.e. the purpose is to limit expression, there is no need to consider its effects. A t this point, legislation with an invalid purpose cannot be saved b y relying on its effects. In case the conclusion o f this test is that the legislation has a v a l i d purpose the litigant can still argue that the effects o f the legislation restrict his freedom o f expression. A c c o r d i n g l y , there is a distinction between content-based restraints and those that merely have the effect o f l imiting expression. 4 1 A governmental purpose to limit freedom o f expression exists where the government intends to restrict the actual type o f speech, i.e. the content o f expression, b y singling out particular meanings that are not to be conveyed. T h i s is, for instance, the case with the cr iminal offence o f defamatory l ibel , restrictions o n advertising or the prohibition o f pornography; likewise, i f the government's purpose is to restrict a form o f expression in order to control access by others to the meaning being conveyed, or to control the ability o f the one conveying the meaning to do so. A n example o f a case o f restricting a 'form' o f expression w o u l d be a law that prohibits handing out pamphlets. S u c h a law is indifferent to the particular content o f the pamphlets but bans whatever content they have and thus, restricts expression. Hogg42 refers to those restrictions, w h i c h he labels 'prior restraint' on publication, as the most severe restrictions since 'expression that is never published cannot contribute in any way to the democratic process, to the marketplace o f ideas or to personal fulfi lment ' . 4 1 [1989] 1 S.C.R. 927, at pp.972-976. 4 2 Peter W. Hogg, Constitutional Law of Canada, (4th ed., Carswell, Toronto, 1996), at p.788. 74 Where the government aims only to control the physical consequences o f particular human activity, regardless o f the meaning being conveyed, its purpose is not to control expression. A rule against littering for example, as opposed to one that prohibits the handing out o f pamphlets (i.e. a certain form o f expression), only aims to control the physical consequences o f certain conduct . 4 3 Therefore the question arises as to what the m i s c h i e f o f the impugned action is. If it consists only i n the direct physical result o f human conduct, the government's purpose is not to restrict freedom o f expression. O n the other hand, where thoughts, opinions, beliefs, particular meanings or the influence that a meaning has on the behaviour o f others are the target o f the regulation, the government's purpose is to restrict expression. Limitations that a i m at some other aspect o f the activity, i.e. those where the government's purpose was not to control or restrict attempts to convey a meaning m a y nevertheless have impact on expression. Courts still have to decide whether the effect o f the government action was to restrict the plaint i f fs free expression. Here the plaintiff must be able to show that the activity in question advances at least one o f the principles and values underlying freedom o f expression, w h i c h have been identified before as participation i n social and political decision-making, seeking and attaining the truth, and promoting individual self-fulfilment. T h e plaintiff has to identify the meaning he intended to convey and demonstrate h o w it relates to the pursuit o f one o f these values. III. Justification o f the L i m i t under s ! o f the Charter Section 1 o f the Charter prescribes the conditions under w h i c h a violation o f freedom o f expression can be justified. Necessary is a 'reasonable l imit ' 'prescribed b y law' that can be 4 3 Unfortunately, rules can be formulated to appear content-neutral while they actually aim to control attempts to convey meaning. 75 'demonstrably justified in a free and democratic society' . T h i s is the crucial stage in freedom o f expression cases. Since almost everything qualifies as expression and since the establishment that expression has been limited b y the state is rather a formal matter, the real issue is to determine whether the particular limit can be justified under s e c . l . Here the collective interests, as wel l as the competing interests and rights o f other individuals , have to be balanced against those o f the claimant, and a reconciliation o f these competing interests needs to be found. In the case o f R. v. Oakes44, the Supreme Court laid d o w n the criteria that must be satisfied to show that a l imit is justified. It also expressed the idea that sec . l o f the Charter has a dual purpose. N o t only does it serve as constitutional guarantee for the rights and freedoms set out in the provisions o f the Charter but it also states explicitly the exclusive justificatory criteria. Therefore the standard should be high for the government to prove that a limitation is justified. A c c o r d i n g to the outline o f the general principles applicable to a sec . l inquiry given in Oakes, a law that qualifies as a reasonable limit first o f all must pursue an objective that is sufficiently important to justify a limitation o f a Charter right. W i t h i n the fo l lowing proportionality stage, the law must be rationally connected to this objective, it must impair the right no more than is necessary to accomplish the objective and it must have a proportional effect o n the person to w h o m it appl ies . 4 5 4 4 [1986] 1 S.C.R. 103, atpp.135-142. 4 5 See Peter W. Hogg, "Section 1 Revisited", National Journal of Constitutional Law 1, 1991/92 1, at pp. 3-4. In Oakes the Court suggested that the standard for justification is high. However, in subsequent cases, such as Irwin Toy the Court retreated from this position. In RJR-MacDonald v. Canada ([1995] 3 S.C.R. 199), for instance, LaForest suggested not to apply s.l strictly in cases where the form of expression is placed far from the 'core' of values underlying freedom of expression. It should only be demonstrated that Parliament had a rational bases for introducing the measure. However, he was dissenting in this case and the majority of the Court decided for a stricter standard. I will refer to this aspect later on p.81. Libman v. Quebec ([1997] 3 S.C.R. 569) is another example that shows how the Court seemed to allow legislature some leeway (see p.84). 76 T h e onus to defend a law as a reasonable limit rests upon the government. A s the party who seeks to u p h o l d the limitation, it has to prove o n a balance o f probability that a limit is reasonably and demonstrably justified in a free and democratic society. It bears the burden o f proving that the impugned legislation is designed to address a pressing and substantial concern, and that the particular means employed b y it are proportionate to this g o a l . 4 6 A l t h o u g h all forms o f expression qualify equally for constitutional protection, it w i l l be easier to justify limits o n some forms o f expression than on others. W i l s o n J. said in Edmonton Journal v. Alberta47 that not all expression is equally worthy o f protection and that not all infringements o f free expression are equally serious. W h e n a form o f expression lies near the 'core ' meaning o f freedom o f expression, for instance political speech 4 8 , there w i l l be a strict application o f sec. 1 whereas a limitation b y a legislature is more l ikely to survive w h e n the expression at issue is peripheral to the core meaning. T h e motives for commercial expression, for example, are primarily economic . A limitation in this respect does not so m u c h result in loss o f the opportunity to participate in the political process or the marketplace o f ideas, or the realization o f one's se l f - ful f i lment . 4 9 46 Irwin Toy, [1989] 1 S.C.R. 927, atpara.69 (p.986). 4 7 [1989] 2 S.C.R. 1326. 4 8 See Libman v. Quebec, [1997] 3 S.C.R. 569, where the Court said in para.60 that political expression is at the very heart of freedom of expression and therefore should normally benefit from a high degree of constitutional protection, that is, that the courts should generally apply a high standard of justification to legislation that infringes the freedom of political expression. 4 9 In Rocket v. Royal College ([1990] 2 S.C.R. 232, at p.247) the Court suggested that restrictions on expression of this kind might be easier to justify. A sensitive, case-orientated approach has been permitted if commercial expression in concerned. In RJR-MacDonald v. Canada ([1995] 3 S.C.R. 199, at para.75 and 77) La Forest said that commercial expression with regard to tobacco advertisement is entitled only to a very low degree of protection because this form of expression lies far from the 'core' of freedom of expression values. Its purpose is only to inform consumers about, and promote the use of, a product that is harmful to the consumers with the main motive of making profit. Therefore he found an attenuated level of sec. 1 justification appropriate in view of provisions limiting this form of expression. (La Forest was part of the minority in this judgement.) 77 1. 'Prescribed b y L a w ' T h e limitation in question has to be traced back to a law as opposed to an arbitrary restriction. T h i s also applies to actions by public officials under the authority o f a law w h i c h grants a general discretion. T h e exercise o f discretionary power has to be based o n a statutory regulat ion. 5 0 O n e basic requirement for a law to constitute a limit prescribed b y law is that it has to be drafted with precision and certainty and avoid vagueness or overbreadth. T o survive a challenge, a law that imposes a limit o n Charter rights should be 'expressed in terms sufficiently clear to permit a determination o f where and what the limit i s ' . 5 1 A law that is unduly vague, ambiguous, uncertain or subject to too m u c h discretionary determination is therefore an unreasonable limit. T h i s is because the citizens have to be able to k n o w their rights and the scope o f these rights. T h e y have to be informed o f what conduct is permitted and prohibited so they can regulate their activities accordingly. Otherwise they might be deterred from conduct w h i c h in fact is lawful and not prohibited just because o f the uncertainty concerning the extent to w h i c h the exercise o f a guaranteed freedom m a y be restrained. Such deterrence is particularly harmful where freedom o f expression is concerned, a freedom w h i c h has been said to underlie the existence o f virtually all other rights and liberties . 5 2 It has to be kept in m i n d that statutes restricting s.2(b) are enacted b y a government whose legitimacy depends on the citizens' consent, w h i c h has a self-serving tendency and an interest in suppressing dissenting views. B r o a d l y formulated statutes w h i c h leave the citizens in the dark 5 0 In Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 an arbitrator appointed by the Minister under the Canada Labour Code imposed a limit on the appellants right of freedom of expression. The Court moved on to sec.l in that case. Likewise, in Douglas/Kwantlen Association v. Douglas College, [1990] 3 S.C.R. 570, where a college was regarded as government agent. 51 Re Luscher and Deputy Minister, Revenue Canada, Customs & Exercise (1985), 17 D.L.R. (4*) 505, at p.506. 78 about their reach are i n the government's interest. In v iew o f the elementary importance o f free expression, this has to be avoided. A s a result, a statute w h i c h describes in unduly vague terms what it regulates and that does not give clear information about what the limit is (for instance i f it confers open-ended discretion to limit protected rights), does not meet the requirement o f being prescribed b y l a w . 5 3 H o w e v e r , the 'vagueness-argument' needs to be seen against the background that there rarely is absolute precision i n the law. Since laws define standards o f general application they inherently posses an element o f uncertainty. T h e y always have a discretionary element because the standard o f interpretation can never specify all the instances in w h i c h they apply. A s long as the legislature does not give a plenary discretion to the courts to do whatever seems best in a wide set o f circumstances, but provides an intelligible standard according to w h i c h the judiciary must decide, the 'vagueness-argument' f a i l s . 5 4 2. Pressing and Substantial Purpose T h e next step is to have a look at the objective w h i c h the limitation is designed to serve. T h i s objective must be ' o f sufficient importance to warrant overriding a constitutionally protected right or f reedom' and it must 'relate to concerns w h i c h are pressing and substantial ' . 5 5 M o s t o f the time courts are reluctant to reject the objectives pursued b y the government at this stage o f the scrutiny. Cardozo J in Palco v. Connecticut, (1937) 302 U.S. 319. 5 3 For example the Court found that the phrase 'likely to cause injury or mischief to a public interest' in a section of the Criminal Code was undefined and capable of almost infinite extension. The complain in this case (R. v. Zundel, [1992] 2 S.C.R. 731) concerned not only the breadth of the section's contextual reach but also that it was particularly invasive by choosing prosecution for an indictable offence as sanction. For fear of prosecution individuals might be restrained from saying what they would like to. Therefore the section in question was overbroad. 5 4 See Irwin Toy, [1989] 1 S.C.R. 927, atpara.63 (p.983). 55 R. v. Oakes, [1986] 1 S.C.R. 103, atpara.69. 79 It is difficult to define the purpose o f a law. Different purposes can be found at different levels o f generality. F o r example, there is the purpose o f a statute as a whole and the purpose o f a particular section o f a statute. T h e higher the level o f generality at w h i c h a legislative objective is expressed, the more obviously desirable the objective w i l l appear . 5 6 But depending on how broadly a purpose is defined, the next stages o f the sec. 1 analysis w i l l be influenced. A high level o f generality w i l l , for instance, be problematical for the government with regard to the 'least drastic means ' requirement: there w i l l be a greater possibility o f f inding a less drastic means that interferes less with the Charter right since a wide objective can be accomplished in many ways. Initially, a h i g h standard o f justification with regard to the pressing and substantial purpose had been required b y the Court to avoid the possibility that the rights and freedoms enshrined in the Charter w o u l d be stripped o f most o f their v a l u e . 5 7 In Irwin Toy, however, excuses have been made for not applying such a high standard. T h e Court retreated from the evidentiary requirements set out i n Oakes and decided that the legislature had to 'draw upon the best evidence currently available' . T o justify their view that judges d id not have to intervene in cases like the one at bar the Court referred, for instance, to Ford v. Quebec59, where government was afforded a 'margin o f appreciation' to form legitimate objectives based o n somewhat inconclusive social science evidence. T h e y also cited R. v. Edwards Books and Art Ltd.60 where it was held that courts are not called upon to substitute judic ia l opinions for legislative ones as to the place at w h i c h a precise line has to be drawn, where one set o f competing claims 5 6 Hogg, "Section 1 Revisited", supra n.45, atp.5. 57 R. v. Oakes, [1986] 1 S.C.R. 103, atp.138. 5 8 For example, legislative debates and statements of the Minister responsible for the legislature, commenting on the reasons for proceeding the way he did, have been accepted as evidence. There even have been competing credible scientific reports, which came to different conclusions. 5 9 [1988] 2 S.C.R. 712, atp.777-79. 6 0 [1986] 2 S.C.R.713, at p.781-82. 80 legitimately begins and another one ends. Therefore, courts have to accept reasonable estimations o f the legislature as to where this line is most properly drawn. Similar ly , in his dissent in RJR-MacDonald v. Canada L a Forest argued that a greater degree o f deference should be accorded legislatures w h e n courts are dealing with legislation that requires mediating between competing issues and protecting vulnerable groups, and when conflicting scientific evidence must be considered. Decis ions in such cases are properly assigned to the elected representatives o f the people o f Canada, who have the necessary resources to make them and who are responsible and accountable to the electorate. 6 1 T h u s , a lower standard actually can apply with regard to the determination whether there is a pressing and substantial purpose. 3. Proportionality Stage If an objective o f sufficient significance is recognized, it still needs to be shown that the means chosen are demonstrably justified in a free and democratic society. T h e purpose for w h i c h the Charter originally was included in the Constitution is that Canadian society is to be free and democratic. Therefore courts have to keep in m i n d the values and principles w h i c h are essential to a free and democratic society . 6 2 Against this background it is necessary that the means chosen to achieve legislature's objective are appropriate. A t this stage courts are required to consider the effect o f a particular governmental action on rights and to balance that against the purpose underlying the action. T h e y have to determine 6 1 [1995] 3 S.C.R. 199, at para.68; La Forest belonged to the minority here and McLachlin J. did not share such a generous view. She suggested a stricter standard. However, 62 R. v. Oakes, [1986] 1 S.C.R.103, at para.64; Dickson J. named as such values respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect 81 whether the act goes too far in the impairment o f rights, w h i c h involves a form o f proportionality test. Three components constitute this test. a) Rational Connec t ion T h e first component is that the measures adopted by legislature to limit a Charter right must be rationally connected to the objective o f the limitation. T h e y must be 'carefully designed to achieve the objective i n question' and must not be 'arbitrary, unfair or based on irrational considerat ions ' . 6 3 T h e infringement and the sought benefit must be connected, i.e. the government must show that the restriction on the right serves the intended p u r p o s e . 6 4 It rarely happens that courts decide that a law is not rationally connected to its objective. T h e Oakes case itself, however, was decided o n the basis that the impugned law lacked rationality. A t issue was a provision o f the federal Narcotic Control Act, w h i c h provided that i f a court finds the accused i n possession o f a narcotic, he is presumed to be in possession for the purpose o f trafficking. T h e rational connection between the basic fact o f possessing a narcotic and the presumed fact o f possessing for the purpose o f trafficking was held to be missing. T h e Court found it irrational to infer that a person had intent to traffic on the basis o f his possession (especially o f a very small quantity) o f narcotics . 6 5 b) M i n i m u m Impairment After the rationality o f the provis ion has been considered it is necessary that the adopted means should impair the right or freedom i n question as little as possible. T h e law should pursue the for cultural and group identity and faith in social and political institutions, which enhance the participation of individuals and groups in society. 63 R. v. Oakes, [1986] 1 S.C.R. 103, atpara.70. 64 RJR-MacDonald v. Canada, [1995] 3 S.C.R. 199, a para.153. 65 R. v. Oakes, supra n.62, at para.77, 78. 82 desired objective b y the least drastic means without affecting the right more than is necessary to accomplish the objective. T h e question becomes whether other means are available to the legislative b o d y w h i c h w o u l d still accomplish the objective but w h i c h w o u l d impair the Charter right less. U s u a l l y the m i n i m a l impairment test is the centre o f the inquiry into s. 1 justification. In Ford v. Quebec66, for instance, the requirement that public signs be only in the French language has been regarded as too drastic a means o f protecting the French language. T o ensure that the "visage l inguistique" reflected the demography o f Quebec , i.e. that French is the predominant language, other less intrusive possibilities could have been chosen. F o r example, French could be required i n addition to any other language or it could be required to have greater visibil i ty than that accorded to other languages. Exc lus iv i ty for French could not be j u s t i f i e d . 6 7 Other cases adopted a more relaxed m i n i m u m impairment test. In Edwards Books and Art Ltd. v. .ft. 6 8 , for instance, D i c k s o n J. reformulated the requirement into whether the right was impaired as little as reasonably possible, and suggested that the limitation only needs to be the least intrusive given the objective and other competing interests. Instead o f insisting that only the least possible infringement could survive, a reasonable legislative effort to m i n i m i z e the infringement was sufficient. L ikewise , L a Forest who stressed that the m i n i m a l impairment requirement does not impose an obligation on the government to employ the least intrusive measure available, but rather the least intrusive in the light both o f the legislative objective and the infringed r i g h t ; 6 9 moreover, the less restrictive measure has to be equally effective. [1988] 2 S.C.R. 712. Ibid, at para.72 (p.780). [1986] 2 S.C.R. 713. RJR-MacDonald v. Canada, [1995] 3 S.C.R. 199, at para.96 (La Forest was part of the minority in that case). 83 Furthermore, in Irwin Toy Ltd. v. Quebec D i c k s o n J. said that the 'Court w i l l not, in the name o f m i n i m a l impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups' . F inal ly , i n 71 Libman v. Quebec the Court explained once more that great deference has to be accorded to the legislature's choice where legislature must reconcile competing interests in choosing one p o l i c y among several that might be acceptable, because it is i n the best position to make such a choice. There are differing views with regard to the question o f how strict the m i n i m a l impairment test should be applied. O n the one hand it has been said that the degree o f constitutional protection m a y vary depending on the nature o f the expression at issue and that even i f a basic form o f expression is restricted, the legislature must be accorded a certain deference to enable it to mediate between competing v a l u e s . 7 2 A c c o r d i n g l y , L a Forest J. contrasts in RJR-MacDonald Inc. v. Canada13 the importance o f Parliament's objective with the low value o f the expression at issue, namely commercial expression, and argues the importance o f the objective justifies more deference to the government at the stage o f evaluating m i n i m a l impairment. O n the other hand, M c L a c h l i n J. emphasises that even o n difficult social issues, Parliament does not have the right to determine unilaterally the limits o f its intrusion o n the rights and freedoms guaranteed b y the Charter. She points out that the Constitution determines those limits. Furthermore, care has to be taken not to overvalue the legislature's objective and not to undervalue the expression at issue. A l t h o u g h commercial speech arguably is less important than 7 0 [1989] 1 S.C.R. 927, atpara.88 (p.999). 7 1 [1997] 3 S.C.R. 569, atpara.59. 72 Libman v. Quebec, [1997] 3 S.C.R. 569, at para.60 and 61; At issue in this case were provisions that restricted spending on referendum campaigns with the primary purpose to promote political expression by ensuring an equal dissemination of points of views. Legislature had to balance the values of freedom of expression and referendum fairness. The Court decided that the particular provisions failed the minimum impairment test. 7 3 [1995] 3 S.C.R. 199. 84 some other forms o f speech it should not be lightly dismissed. c) Proportionate Effect F i n a l l y there must be proportionality between the effects o f the measure in question, and its objective. T h i s test only applies w h e n all the other aspects o f proportionality have been satisfied, i.e. after the means have been judged to be rationally connected to the objective and to be the least intrusive available. T h e more severe the deleterious effects o f a measure are the more important must be the objective. So even i f all elements o f the sec . l analysis are satisfied it is still possible that a limit w i l l not be justified b y the purposes it intends to serve because its deleterious effects are too severe. In Dagenais v. Canadian Broadcasting Corp. the Court rephrased the third step o f the above-described "Oakes-test" . Instead o f only requiring proportionality between the objective o f the impugned governmental measure and its deleterious effects, the Court recognized the necessity to measure the actual salutary effects o f the impugned legislation against its deleterious effects . 7 6 T h e question becomes that o f h o w effectively the applied measure achieves its purpose. Often the adopted means w i l l result in the (nearly) full realization o f the legislative objective. There the balance between the objective i n question and the deleterious effect has to be examined. B u t i f the measure w i l l result in only the partial achievement o f its objective it is necessary to ask whether both the underlying objective and the salutary effects are proportional For the majority in RJR-MacDonald, at para. 168, 169. The majority decided in this case that the challenged provisions are of no force and effect under sec. 52 of the Charter because they could not satisfy the requirement of minimum impairment. Instead of fully prohibiting any advertising of tobacco products government could have chosen for instance a partial ban which would allow information and brand preferences advertising, or a ban on lifestyle advertising only. These alternatives would have been a reasonable impairment given the objective and legislative context. And with regard to the requirement of placing health warnings on tobacco packaging government failed to show that the warning had to be unattributed to achieve the objective of reducing tobacco consumption. 7 5 [1994] 3 S.C.R. 835. 7 6 Ibid, at para.93. 85 to the deleterious effects the measure has on fundamental rights and freedoms. C h i e f Justice D i c k s o n , who authored the majority judgement i n Oakes, later on expressed concern about the judic iary potentially intruding into the legislative sphere, and argued for a less strict application o f the criteria set out in Oakes in certain cases. S imilar ly L a Forest J., emphasised i n RJR-MacDonald v. Canada19 that the Court only established guidelines in Oakes to provide a framework for the determination o f whether an infringement can be justified. H e further said that the balance w h i c h the courts have to strike between individual rights and community needs could not be achieved in the abstract. Therefore courts should not stick strictly to a formalistic test but rather should take into account the nature o f the infringed right and the specific values and principles upon w h i c h the state seeks to justify the infringement. T h i s means that the requirements described in Oakes must be applied flexibly, with regard to the specific factual and social context o f each case. L a Forest supported this v iew b y referring to the word 'reasonable' i n s e c . l , w h i c h , he argued, implies flexibility. In this respect, the question arises whether such eroding o f the initial test is reconcilable with the rationales underlying freedom o f expression as described in Chapter 1. These rationales made a strong plea for an extensive protection o f freedom o f expression. If the courts continue to undermine the strictness o f the test w h i c h justifies limitations o n s.2(b), they surely undercut the purposes underlying this right. 7 7 See Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at pp.887-8. At issue in the case was an injunction prohibiting the CBC from broadcasting a series entitled "The Boys of St. Vincent', a fictional account of sexual and physical abuse of children in a Catholic institution. The appellants, members of a Catholic religious order, were charged with abuse of children in their care at training schools and therefore applied for the injunction. The Court concluded that a publication ban has a serious deleterious effect on freedom of expression and has few salutary effects on the fairness of trial. Therefore they did not authorize the ban. 78 R. v. Oakes, [1986] 1 S.C.R. 103. 86 In most o f the cases courts do not spend very m u c h time with this concluding stage o f the sec . l analysis. In Irwin Toy?0 the Court s imply held that 'there is no suggestion that the effects o f the ban are so severe as to outweigh the government's pressing and substantial objective' . It offered as supporting reason the fact that advertisers were free to direct their messages at parents and other adults, or to participate in educational advertising; they were just not allowed to aim advertisements at children. 81 In Rocket v. Royal College of Dental Surgeons , however, the provis ion restricting dentists' advertising d i d not pass this proportionality test. Its effect was clearly to prohibit expression, and it ,did not further its objectives o f promoting professionalism, and o f preventing irresponsible and misleading advertising. T h e exclusion o f m u c h o f the prohibited speech was not necessary. F o r example, information about dentists' office hours, the languages they speak or other objective facts relating to their practise is very useful and the public has an interest in obtaining this k i n d o f information. S u c h useful information was restricted without justification. Therefore the provis ion 's effects were held to be disproportionate to its objective. H o g g has expressed doubts about the use and significance o f this last step within the proportionality stage. If a law is sufficiently important to justify overriding a Charter right (first step), i f this law is rationally connected to the objective (second step), and i f it also impairs the right at issue no more than is necessary to accomplish the objective (third step), the question is h o w the law's effects could then be judged to be too severe (fourth step). H e concluded that an affirmative answer o f the first three steps has to result in the affirmation o f the fourth step and that therefore this last step has no work to do and can be i g n o r e d . 8 2 7 9 [1995] 3 S.C.R. 199, at para.62 (dissenting opinion). 8 0 [1989] 1 S.C.R. 927, atpara.89. 87 However , i n m y opinion, there could also be a different interpretation o f the proportionality test outlined in Oakes. T h e questions whether the limitation pursues a sufficiently important objective, whether it is rationally connected to this objective, and whether it is the least drastic means have to be answered o n an abstract level , i.e. the challenged law has to meet these requirements in general. T h e last issue, whether the law has disproportionate effects, then refers to the particular situation that leads to the challenge. A c c o r d i n g l y , it could happen that a law, w h i c h is generally valuable, cannot be applied to one particular person because it has a disproportionately severe effect o n this very person. T h e proportionality analysis i n Germany, for instance, proceeds this way, first scrutinizing the constitutionality o f the limitation in general, then testing whether the application o f the limiting statute is justified i n the specific case at b a r . 8 3 I V . 'Indirect' A p p l i c a t i o n o f the Charter A different question is, what k i n d and how m u c h o f an impact the Charter is to have i f it does not directly apply, for example in the context o f c i v i l litigation i n v o l v i n g private parties only that rely o n a c o m m o n law rule. In Dolphin Delivery*4 the Court held that in such a case the c o m m o n law has to be developed i n accordance with Charter values, i.e. that the Charter applied 'indirectly' i n so far as the c o m m o n law can be found to be inconsistent with Charter values. However , the Court d id not elaborate o n the differences between the direct and 'indirect' application o f the Charter and how exactly the c o m m o n law is to be developed in a manner consistent with Charter principles. Hill v. Church of Scientology*5 gave us a sense o f how the Supreme Court deals with 'indirect' Charter application. 8 1 [1990] 2 S.C.R. 232. 8 2 Hogg, "Section 1 Revisited", supra n.47, at p.24. 8 3 See Chapter 4 on pp. 103-105. 8 4 R.W.D.S.U. v. Dolphin Delivery (1986), 33 D.L.R. (4th) 174. 8 5 (1995), 126 D.L.R. (4th) 129. 88 L o g i c a l l y , the test to be applied i f the court is dealing only with Charter values should be less strict than under a direct application o f the Charter. Otherwise, the distinction between Charter rights and values does not make sense. A c c o r d i n g l y , the Court i n Hill departed from the rigorous standard o f Oakes. It decided not to utilize the traditional s . l analysis but to apply a more flexible standard: the principles o f the c o m m o n law (in that case the law o f defamation) should be weighed against the values underlying the Charter, w h i c h w i l l provide guidelines for the modif icat ion o f the c o m m o n law rule - i f such a modificat ion proves necessary. 8 6 However , a test comparable to that set out i n Oakes, providing some degree o f certainty, cannot be detected in Hill. T h e Supreme Court only stated that courts should be cautious when amending the c o m m o n law and should not go further than necessary, leaving far-reaching changes to the legislatures. A major difference between the direct and 'indirect' application o f the Charter established in Hill is the onus shift: according to the Supreme Court , the party challenging the c o m m o n law bears the onus o f p r o v i n g both that the c o m m o n law fails to c o m p l y with Charter values and that, when these values are balanced, the c o m m o n law should be modif ied . T h e reason for this decision was that a private party should be able to rely upon the c o m m o n law, w h i c h may have a long history o f acceptance in the community , and should not be placed in the position o f having to defend it. In m y o p i n i o n it is neither reasonable to apply a different test o f justification i f the c o m m o n law is concerned, i n contrast to statutory law, nor can I actually detect any test at all in Hill. However , this issue w i l l be discussed further in chapter six. Ibid, at p. 157. 89 C H A P T E R 4: T h e t w o C o m p e t i n g V a l u e s i n the G e r m a n J u r i s d i c t i o n T h i s chapter describes some crucial aspects o f h o w the G e r m a n legal system deals with the coll is ion o f the right to freedom o f expression and the protection o f an individual 's reputation. I w i l l shows the concept o f constitutional scrutiny and defamation in G e r m a n y as representative o f a c i v i l law jurisdiction in the hope that the ideas underlying this different approach might provide some inspiration. T h e discussion o f this country's approach is not so m u c h intended as a comparative approach, but rather to point out that freedom o f expression receives m u c h stronger protection outside o f C a n a d a i n order to support m y conclusions i n Chapter 6. T h e legal system in G e r m a n y is in principle based o n codif ied law with a traditional distinction between public and private law. T h e most important feature concerning constitutional cases is the balancing, or rather weighing, o f competing values b y deciding conflicts in the light o f the individuality o f the case and its special circumstances. T h i s strong orientation o f judgements by the concrete case has parallels with the c o m m o n law system. B o t h freedom o f expression and the individual's reputation, are constitutionally protected in Germany. T h u s , it is not a conflict between constitutional freedom o f communicat ion and values w h i c h are enshrined i n ordinary statutory texts (such as provisions o f the C i v i l Code) that needs to be resolved but the col l is ion o f two constitutional values. 1 90 A . T h e V a l u e s at Issue I. F r e e d o m o f Express ion Freedom o f expression o f opinion is guaranteed in article 5 o f the Constitution. In the Liith case the Federal Constitutional Court held that the basic right to freedom o f expression, the most immediate aspect o f the human personality in society, is one o f the most precious rights o f man. It is absolutely essential to a free and democratic state, for it alone permits 'constant spiritual interaction', the 'conflict o f opinion' , w h i c h is its vital element. T h i s freedom advances and guarantees the possibili ty o f forming a free individual and public opinion with a wide range o f disparate views and i n a certain sense is the basis o f freedom itself. Art ic le 5 protects statements o f opinion, distinguishing opinions i n the sense o f 'value judgements' (Werturteile) f rom 'factual assertions' (Tatsachenbehauptungen). 4 T h e term 'value judgement' covers the expression o f thoughts, convictions, evaluations, rejections, comments, assessments, i.e. generally all kinds o f expressions where the subjective element prevails. T h e protection o f such opinions does not depend o n their reasonableness or the value o f their content. 5 W h i l e value judgements enjoy presumptive protection, factual assertions, statements that can be proved as correct or false, are not protected as generously. H o w e v e r , since they are 1 Michael Sachs, Grundgesetz Kommentar, (CH. Beck Verlag, Miinchen, 1999), Art.5 Rn.162, Berthge. 2 Art.5 I 'Everyone shall have the right to freely express and disseminate his opinion by speech, writing, and pictures and to inform himself without hindrance through generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.' Art.5 II 'These rights shall find their limit in the provisions of general laws, in provisions for the protection of youth, and in the right to personal honour.' 3 BVerfGE 7, 198 (Liith, 1958) [BVerfGE = Bundesverfassungsgerichtsentscheidung = decision of the Federal Constitutional Court; the Bundesverfassungsgericht is the highest German Court and a guardian of the Basic Law. 4 Statements are not only protected in the dimension of their dissemination but also in the dimension of their effect. Freedom of expression accordingly includes the right to choose those forms and circumstances which ensure the greatest possible effect for the statement. BVerfGE 25, 256, 265 (Blinkfuer, 1969). ? BVerfGE 33, 1, 14 (Strafgefangene, 1972); 90, 241, 247 (Ausschwitzliige, 1994). 'Every person may assert and disseminate his opinion irrespective of whether it is valuable, valueless, true or false, well grounded or not, emotional or irrational. Sharp and exaggerated opinions are also protected. Especially in public debate, criticism, 91 often closely connected to the forming o f an opinion, factual assertions w i l l be protected i f they are a prerequisite or foundation for the formation o f opinions . 6 Yet , statements about facts are not covered b y the protection o f article 5 i f they are obviously false at the time o f their utterance since false facts do not contribute to the formation o f real public opinion and therefore do not deserve any constitutional protection. 7 T h u s , intentional lies and the dissemination o f facts that are 'consciously false', or 'false as has been proved' fall outside the scope o f protection. In contrast to this, the Supreme Court o f Canada held that even deliberate falsehoods are protected b y s.2(b) i n the case o f R. v. Zundef. However , Canadian constitutional law also has one exception concerning the scope o f guaranteed free expression: expressive acts o f violence w i l l not receive constitutional protection. 9 T h e right to freedom o f the press, w h i c h is also mentioned i n Art .5 I G G , is not regarded as a special basic right (no lex specialis i n relation to freedom o f expression). Indeed, the expression o f opinion contained in a press report is protected b y the general right to freedom o f expression. T h e right to a free press refers to institutional prerequisites and general conditions such as the procurement o f information, its technical transformation and the dissemination o f the final news. Furthermore, the media are granted certain privileges. F o r instance, the right o f editorial confidentiality is seen as a prerequisite o f a free press since it secures its independence . 1 0 O n the other hand, heightened duties correspond with this constitutional right, as there is a journalistic duty o f care, w h i c h demands their journalists to carefully examine their news stories for truth, even in exaggerated and polemical form must be accepted if one is to avoid limiting the process by which public opinion is formed.' 6 BVerfGE 61, 1, 8 (NPD Europas, 1982). 7 BVerfGE 54, 208, 219 (Boll/Walden, 1980); 61, 1, 8 (NPD Europas, 1982). 8 [1992] 2 S.C.R. 731. 9 Irwin Toy v. Quebec, [1989] 1 S.C.R. 927, at p.970. 1 0 Martin Kriele, "Ehrschutz und Meinungsfreiheit", NJW 1994, 1897, 1902; Fritz Ossenbuhl, "Medien zwischen Macht und Recht", JZ 1995, 633, 635. 92 contents and origin. T h e demands o f this duty increase i f personality rights are concerned. 1 1 Final ly , constitutional protection might not even be removed from the publication o f illegally obtained pieces o f information i f the publication serves a socially useful function, for instance i f it reveals some illegality. II. T h e Individual's Reputation T h e reputation o f an individual is protected as part o f the right to 'personal honour ' . 1 2 T h e right to personal honour can be found in Art .5 II G G 1 3 as one o f the limits o f freedom o f expression. It receives its constitutional protection as the most important component o f the 'general personality right' , w h i c h is not explicitly mentioned in the basic rights o f the G e r m a n Constitution. Indeed, this personality right is a conceptual creation o f the c i v i l administration o f justice; the G e r m a n Federal Court o f Justice derived it from A r t . l I in combination with Art.2 I o f the C o n s t i t u t i o n 1 4 where h u m a n dignity and personal freedom are granted. 1 5 In Schacht, a landmark decision i n 1954 1 6 , the G e r m a n Federal Court established that a human individual is not only protected in his human dignity and the free development o f his personality but also that a general right o f personality exists w h i c h must be regarded as constitutionally guaranteed and should therefore be recognized within the C i v i l C o d e . T h u s , the new institution 'general personality right' was construed i n the c i v i l law b y reading it into the general delict 1 1 Ossenbiihl, supra n.10, at p.636; Schmidt-Bleibtreu, Kommentar zum Grundgesetz, (9th ed., Luchterhand, Neuwied, 1999), Art.5, Rn.226 1 2 With respect to honour there is a dual understanding. On the one hand, there is the 'inner honour' as aspect of human dignity. The 'outer honour', on the other hand, refers to a claim to social recognition, to a good reputation within society. Peter Tettinger, "Das Recht der personlichen Ehre in der Weltordnung des Gesetzes", JuS 1997, 769, 770. 1 3 'GG' is the abbreviation for 'Grundgesetz', i.e. the German Constitution and Art.5 II GG stands for article 5 section two of the Constitution. 1 4 Art.l I GG 'Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority'. Art.2 I GG 'Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law'. 1 5 The Supreme Court of Canada linked personal reputation to human dignity as well. In Hill v. Church of Scientology, (1995) 126 D.L.R. (4th) 129 it is said on p.163 that 'the good reputation of the individual represents and reflects the innate dignity of the individual...' 1 6 BGHZ 13, 334 (Schacht, 1954) [BGH = Bundesgerichtshof = highest court for civil matters]. 93 provis ion o f the G e r m a n C i v i l C o d e , § 823 B G B 1 7 , under the designation of 'other right'. T h i s development is to be seen against the background o f the idea that basic rights have two different functions. O n the one hand they are 'subjective rights', relating to the freedom o f the individual . T h e m a i n purpose o f the B i l l o f Rights in this respect is to constrain public power and to protect the individual against state intervention. B u t b e y o n d this, the basic rights are regarded as establishing an 'objective order o f values' that centres o n the freedom o f the human being to develop i n society and w h i c h must, as a constitutional axiom, apply throughout the entire legal s y s t e m . 1 8 A n individual 's dignity and personality lie at the core o f this value order reflected in the fundamental rights that are protected b y the Constitution. T h e y must be respected and protected by all organs o f the state. T h u s , the concept o f human personality is one o f the supra-legal basic values o f the law and a basis for free and responsible self-determination o f the personality. T o respect the inner realm o f the personality and to refrain f rom invading it without authorisation is a legal c o m m a n d issuing from the Basic L a w itself. Therefore, general personality rights are incorporated i n the basic r ights . 1 9 F r o m the standpoint o f the C i v i l C o d e the protection o f property interests always stood in the foreground, whereas the personal worth o f individuals only received fragmentary protection. B u t i n recognizing a general personality right and granting it the protection o f § 823 B G B the court drew for c i v i l law purposes the consequences resulting from the rank the Constitution assigned to the worth o f human personality. 1 7 § 823 I 'A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom, property or other right of another is bound to compensate him for any damage arising therefrom'. § 823 II 'The same obligation is placed upon a person who infringes a statute intended for the protection of others. If, according to the provision of the statute, an infringement of this is possible even without fault, the duty to make compensation arises only in the event of fault'. 1 8 BVerfGE 7, 198 (Liith, 1958). 1 9 BGHZ 26, 349 (Herrenreiter, 1958). 94 T h e decision in Schacht was confirmed i n Herrenreiter (show-jumper) and was finally approved b y the Constitutional Court i n Soraya2X with the result that a 'right to be let alone' has emerged i n G e r m a n c i v i l law. T h u s , the constitutional values o f liberty and dignity provided the foundations on w h i c h c i v i l privacy rights could be developed judic ia l ly . W i t h the recognition o f a constitutional right o f privacy, the individual's reputation as part o f this right was granted constitutional status. 2 2 Guaranteed b y this personality right is a 'personal sphere o f l iving' , an 'area o f free self development o f the personality', i.e. a sphere where the individual remains unobserved and on his o w n . Part o f this is the representation o f a person i n publ ic ; everybody can decide for h i m s e l f h o w he wants to represent h imsel f towards others, what should define his c la im to social recognition, and i f and to what extent others are allowed to disclose parts o f his l i f e . 2 4 This does not mean that a person has a c la im only to be represented to the public in a manner which corresponds to his self-image or w h i c h is pleasant for h i m . It does, however, protect h i m against representations w h i c h distort or falsify or w h i c h can substantially interfere with the development o f his personali ty . 2 5 There are various possibilities o f h o w an individual whose personality rights are violated can proceed against such an infringement. I U 1 U . 2 1 In B V e r f G E 34, 269 (Soraya, 1973). 2 2 The development o f the personality is according to article 2 confined within the boundaries of the constitutional order. This is to be understood as including al l legal norms that are formally and materially in harmony with the basic law. Therefore, the basic right is subject to statutory limits. A certain part o f the personality right, however, which refers to the human dignity in A r t . l I G G , is inviolably corresponding to the constitutional mandate of the inviolabil i ty o f human dignity, w h i c h underlies a l l basic rights. 2 3 Mar t in Kr ie le , "Ehrschutz und Meinungsfreiheit", N J W 1994, 1897, 1898. 2 4 B V e r f G 35, 202 (Lebach, 1973); Hans Jarass, "Das allgemeine Personlichkeitsrecht i m Grundgesetz", NJW 1989, 957, 858. 2 5 Accordingly , an individual has the right not to be misquoted and is protected against having statements attributed to h i m which he did not make and which impair his self-defined c la im to social recognition. Furthermore, the bearer of the right is protected against commercial appropriation, for instance through unauthorized advertising, i.e. he has the right to his o w n words and picture. Hans Jarass, supra n.24, at p.858; B V e r f G E 63, 131, 142 (1984); 35, 202, 220 (Lebach, 1973); B G H Z 30, 7 (1959) and 36, 346 (1961). 95 In c i v i l law, especially § 823 and § 1004 o f the C i v i l C o d e give expression to the right to personality, p r o v i d i n g a cause o f action before a c i v i l court. Furthermore there are § 12 B G B 2 8 , referring to the right to one's name, as wel l as § § 2 2 , 23 and 33 K U G for the violation to a person's right to his o w n picture, a barrier in cases o f press reporting. Possible remedies in c iv i l law are a prohibitory injunction , a right to retraction or to reply as wel l as monetary IT compensation. In addition to the causes o f actions before a c i v i l court, the individual can also 2 6 Supra n.17. 2 7 § 1004 B G B grants the proprietor a claim to eliminate any impairment or disturbance of property. In so far as there is a danger of further disturbances the proprietor has an action for injunction. 2 8 A n action for injunction also is possible in cases of violation of the right to one's name, according to § 12 BGB. This provision deals with cases where one person denies another person's right to use a specific name, or where another person injures the interest of a person who is entitled to a certain name through the unauthorized use of this name. 2 9 § 22 K U G [KUG = Kunsturhebergesetz = law on copyright in works of art] determines that pictures of people can only be disseminated or displayed publicly with the consent of the person portrayed while § 23 K U G states certain exceptions of this rule, for instance in cases where a person of contemporary history is concerned. If there is a violation of these provisions, § 33 K U G allows imposing a fine or imprisonment up to one year. 3 0 For the assertion of an injunction it is sufficient to set forth the objective unlawfulness of the offending statement. It is not necessary to prove fault on the part of the person making the utterance. A further condition is that the alleged violation of rights is imminent or that there is the danger of a repeated violation, which the courts usually assume when there was a prior violation of rights. 3 1 The right to retraction also does not require fault. The plaintiff claiming this right to correction or revocation has to prove that the disputed factual statement is in fact false and that the impairment of it still lasts. Moreover the retraction has to be necessary with regard to the concrete circumstances of the case and, finally, unlawful. 3 2 The right to reply is a special right concerning media publication. It confers the right to supplement a published text through one's own reply in the same section as the text complained of appeared in and in the same type and manner as to attract the same measure of attention among the readers. This right immediately derives from the general personality right. However, in so far as the personality right is allegedly violated by another person's utterance, the right to a reply or a retraction are only available if the complaint is about statements of facts. Bonner Grundgesetz, (C.F. Miiller, Heidelberg, Stand Nov.2000), Art.5 Rn.185 ff; Degenhart, "Monetary compensation can be achieved through either § 823 I of the Civil Code or § 823 II B G B in combination with for instance the defamation regulations of the criminal code. In order to succeed the plaintiff has to show that the defendant unlawfully disparaged his personality right, that he attacked the protected sphere of this right 'blameworthy' and that he was 'responsible' for the infringement. Finally, the plaintiff has to prove that the damage occurred as a causal consequence of the disparagement. Difficulties arise if there is no pecuniary loss involved because § 253 of the Civil Code determines that for an injury which is not a pecuniary loss compensation may only be awarded in the cases specified by law. Accordingly, mere immaterial damage, expressed for example in a degradation of the personality, cannot give rise to a money claim in the absence of an express legal provision. Such a legal provision does not exist with respect to the infringement of personality rights. (The latter are themselves not even explicitly mentioned in the enumeration of § 823 I BGB.) Nevertheless, it is now established that the articles 1 and 2 of the Constitution shall be used to enforce immaterial damage which a person has suffered as a result of the invasion of his personality. The reasoning is as follows. The law of delict deals with the disturbance of essential values and makes the doers of injury owe satisfaction to the victim for the wrong done to him. It has to pay attention to the value-decision of the Constitution, where the protection of human dignity and of the right to free development is at the head of the fundamental rights. If a violation of the constitutionally guaranteed personality right did not give rise to an adequate sanction, the protection of this right would be incomplete. The elimination of damages for immaterial loss from the protection of personality would mean that injury to the dignity and honour of a human being remains without any sanction of the civil law. 96 have a cr iminal cause o f action based on defamation, slander or ca lumny w h i c h is regulated in § § 185 - 194 o f the G e r m a n Penal C o d e . 3 4 B . Constitutional R e v i e w with respect to the V i o l a t i o n o f Bas ic Rights Before having a look o f h o w freedom o f expression and reputation are balanced in Germany, some basic features o f the country's constitutional law have to be explained. I. T h e Constitutional Complaint T h e constitutional complaint is a procedural means provided b y the Constitution to give effect to the commitment laid d o w n in A r t ! I l l G G that 'the basic rights shall b i n d the legislature, the executive and the judiciary as directly as applicable law'. A c c o r d i n g l y , the issue o f such a complaint is an 'act o f public authority' . 3 5 A court decision is seen as such an act o f state because the rules w h i c h the court applied had been fashioned b y the state. In a case where a private entity had violated another person's basic rights the lower courts perpetuate the constitutional violation b y not acknowledging it. Therefore, the crucial element is not the fact that the dispute is between private individuals but the public character o f the court decision i n combination with the provenance o f the applied rule, w h i c h was formulated b y the state. T h i s view is contrary to the one expressed i n Dolphin Delivery, where the Supreme Court o f Canada expressly excluded the judicial branch from the scope o f s.32(1) and, thus, f rom Charter Therefore, in cases of substantial violations of the personality right damages for pain and suffering will be awarded although there was no pecuniary loss. They are treated as punitive damages, awarded to punish the wrongdoer and to deter others from behaving similarly. (BVerfGE 34, 269, 293). 3 4 § 185 punishes insult, § 186 malicious gossip and § 187 defamation. Both, malicious gossip and defamation, deal with the dissemination of facts which disparage another in the public opinion but in the latter case those facts have to be untrue. As far as disparaging opinions are concerned only insult is possible. 3 5 Art.93 I No.4a GG determines that "The Federal Constitutional Court shall rule on constitutional complaints, which may be filed by any person alleging that on of his basic rights ... has been infringed by public authority.' 97 application. However , the constitutional complaint empowers the court to review judic ia l decisions only within narrow limits. It is not for the Constitutional Court to check judgements o f c i v i l courts for errors o f law in general, i.e. it cannot review the facts as found and evaluated by the lower court, the assessment o f evidence, or the application o f the c i v i l law provisions in the individual case. These are matters for the regular courts and the Constitutional Court is not, like a court o f appeal, empowered to substitute its o w n opinion o f the case for that o f the proper j u d g e . 3 7 T h e Constitutional Court can only scrutinize whether there is a violation o f 'specific constitutional 38 law' . J O T h i s means that the court must determine whether the regular courts have correctly ascertained the reach and effect o f the basic rights i n private l a w . 3 9 II. Horizontal Effect o f the Basic Rights Since the Constitutional Court scrutinizes whether the judgement o f the c i v i l court sufficiently took the influence o f basic rights into account, these rights must have some horizontal effect, i.e. they must also regulate the relationships between private individuals to some degree . 4 0 A s already mentioned, the primary function o f the basic rights does not exhaust itself with the protecting o f the individual 's sphere o f freedom against encroachment b y public power, i.e. as the citizen's bulwark against the state (Abwehrrechte, w h i c h means defensive rights) . 4 1 T h e y also incorporate an objective set o f values, against w h i c h subsequent statutes must be tested. 36 R. W.S.D.U. v. Dolphin Delivery Ltd, [1986] 2 S.C.R. 573. "Christian Zacker, "Die Meinungsfreiheit zwischen den Miihlsteinen der Ehrabschneider und der Menschenwtirde", DOV 1997, 238, 239; BVerfGE 30, 173 (Mephisto, 1971). 3 8 Fritz Ossenbuhl, "Medien zwischen Macht und Recht", JZ 1995, 633, 640. 3 9 BVerfGE 7, 198, 204-207 (Liith, 1958). 4 0 At any rate, the belief that in the contemporary world individuals and private entities can interfere with human rights as extensively and more frequently than the state supports the concept that basic rights should have some influence even within private disputes. 98 T h i s objective order o f values pervades the entire legal system and thus expresses and reinforces the validity o f the basic rights. It affects especially strongly those areas in w h i c h the law prescribes b i n d i n g rules (ius congens) that displace the w i l l o f the parties. Naturally, it influences private law as w e l l i n so far as no rule o f private law m a y conflict with it and all such rules must be construed in accordance with its spir i t . 4 2 A l t h o u g h constitutional rights are not directly applicable in private disputes and cannot override rules o f c i v i l law they nevertheless influence these rules. In view o f this, the Constitutional Court adopted the principle o f indirect effect 4 3 w h i c h means that a certain intellectual content o f the constitutional principles flows and radiates into the c i v i l norms and informs their interpretation and application. T h i s effect is most relevant to certain general clauses o f the C i v i l C o d e , w h i c h are described as so-called 'points o f entry' for basic rights into private law. O n e example for such a general clause is the term 'bonos mores'1 i n § 826 BGB, a regulation, w h i c h provides a remedy against a person w h o w i l f u l l y causes damages to another in a manner contra bonos mores. General clauses allow the courts to respond to the influence o f the value-system o f the constitutional rights since i n deciding what is required i n a particular case b y such social commands, they must start f rom this system. If the judge disregards the influence o f basic rights his judgement, as an act o f public authority, infringes the constitutional right or rights o f one o f the parties. T h i s party can then enforce his c la im to consideration o f his rights with a constitutional complaint. A s a result, decisions o f the regular courts are subject to constitutional review. 4 1 BVerfGE 7, 198, 204 (Liith, 1958). 4 2 In this respect, the Supreme Court of Canada proceeded similarly by deciding that the common law must be interpreted in a manner which is consistent with Charter principles and by allowing a private party in private litigation to argue that the common law he complains about is inconsistent with Charter values. (Hill v. Church of Scientology (1995), 126 D.L.R. (4th) 129, at pp. 156-7) 4 3 This indirect effect approach had already been adopted by the German Federal Court in Schacht, BGHZ 13, 334 in 1954 before the German Constitutional Court confirmed it in Liith, BVerfGE 7, 198 (1958). 99 There, the Federal Constitutional Court must determine whether in applying the rules o f private law the judic ia l decision under attack misconceived the meaning o f the basic rights o f whose infringement the complainant complains. T o what extent this review w i l l take place depends on the seriousness o f the invasion b y the ordinary courts. T h e more seriously a decision influences the sphere o f a basic right, the more thorough w i l l be the review and w h e n the intensity o f the invasion b y the lower court's decision is at its greatest the Constitutional Court is empowered to replace the evaluation undertaken by the c i v i l court with its o w n evaluat ion . 4 4 In v iew o f this, the Constitutional court can h o l d that the basic right o f the losing party has been infringed i f the judge has failed to recognize that it is a case o f balancing conflicting constitutional rights, or i f he has based his judgement on a fundamentally false view o f the importance, and especially scope, o f either o f those rights. T h u s , the Constitution exerts an influence o n private relationships. Nevertheless, the resolution in such cases o f conflict ultimately depends on the application o f private law. III. Ar t i c le 5 A n a l y s i s T h e constitutional complaint is justified i f the complainant's basic right in question is indeed violated b y an act o f publ ic authority. T h e test in this connection consists o f three steps. First it has to be determined whether the impugned behaviour falls within the protected scope o f the basic right w h i c h the individual complains has been i n f r i n g e d . 4 5 Secondly , some 'state-interference' in this basic right has to be shown, i.e. a limitation b y public authority is necessary. 4 6 T h e third and most important step is the 'constitutional justification' o f this interference, similar to the Canadian concept, where the issue o f justification under s ! o f the 4 4 BVerfGE 42, 143, 149 (Deutschland Magazin, 1976). 4 5 The allegedly infringed activity of the complainant actually has to be covered by article 5 of the Basic Law. The scope of this basic right has already been defined above within the paragraph 'The values at issue' 100 Charter is crucial and at the centre o f freedom o f expression cases. W i t h i n the test o f 'constitutional justification' the court has to f ind out whether the state intervention complained o f is covered b y a 'constitutional limitation' provided b y the basic right itself or otherwise b y the Basic L a w . A l m o s t every basic right in the G e r m a n Constitution is subject to certain limitations, for instance to statutory limits. W h i l e the Canadian Charter has s . l as a general l imitation clause, preceding the enumeration o f rights and freedoms, the basic rights in the G e r m a n Constitution often contain specific restrictions, as does article 5 in his subsection 2 . 4 7 T h u s , the question is whether the basic right itself provides a possibili ty to restrict its application, i f so, whether the state action, referring to this limitation, fulfils its requirements and, finally, whether the limitation is proportionate. 1. General L a w s Freedom o f o p i n i o n is only guaranteed within the framework o f the general laws, the statutory provisions for the protection o f the young and the right to personal honour, i.e. freedom o f opinion is, according to Art .5 II G G , subject to these l imitat ions . 4 8 T h u s , Art .5 II allows the c ivi l and criminal legislators the freedom to place some limits on the basic right to free expression. M o s t o f the time, freedom o f expression w i l l be restricted by a 'general law', w h i c h is the first possibility enumerated i n Art .5 II G G . L a w can be classified as general law i f it does not prohibit a certain opinion itself and is not directed against the expression o f a certain opinion, i.e. the law has to be neutral. In addition, it has to protect or serve a protected interest that deserves this protection, regardless o f a particular opinion, and w h i c h takes priority over the 4 6 This is the case, for instance, when the basic right has been impaired by an act of public authority, for instance the prohibition, impediment or order of the expression or dissemination of an opinion. It is sufficient if the state action only has limiting effects on free expression, similar to the Canadian purpose or effect approach. 4 7 See note 2 above. 4 8 See Art.5 II GG in note 2. 101 freedom o f expression. § 1 8 5 o f the Penal C o d e , for instance, punishes 'insult'. It is a statutory provis ion that in effect prohibits expression, namely expression that constituted the cr iminal offence o f insult. However , this provis ion is not specifically directed against a particular opinion but applies to everybody. It serves the protection o f another very important interest, that o f personal reputation, w h i c h deserves protection. Therefore, § 185 S t G B 5 0 qualifies as 'general law' in the sense o f Art .5 II. T h i s example also explains w h y the limitation o f 'general law' is the most frequent one in article 5 analysis: the provisions that deal with the protection o f young persons or with the right to personal honour mostly are general laws just as § 185 S t B G is a general law and, at the same time, one o f the rules concerning the right to personal h o n o u r . 5 1 Therefore, the first question in the stage o f constitutional justification o f a limit is whether the l imit ing legal provis ion qualifies as general law. M o s t o f the time the provis ion i n question fulfils the requirement o f being a general law. H a v i n g a general law as such, however, is not sufficient to limit freedom o f expression. If it were, since almost all statutory restrictions classify as general law, the result w o u l d be that freedom o f expression could be very easily restricted. 2. T h e o r y o f Reciprocal Effect O f great importance with regard to the limitation o f article 5 b y general laws is the theory o f reciprocal effect w h i c h is based o n the idea that there is a certain relationship, a reciprocal effect, between the restricting law and the restricted basic right. T h e judge has to determine to 4 9 Jarass/Pieroth, Grundgesetz fur die Bundesrepublik Deutschland, (3rd ed., C H . Beck, Mtinchen, 1995), Art.5, Rn.45, Jarass. 5 0 StGB = Strafgesetzbuch, i.e. Penal Code. 102 what extent the general laws limit the constitutional right. Here, the theory demands o f the judge to keep in m i n d that these general laws themselves should be seen against the background o f the entire legal system and o f the importance this system attaches to free speech. Just as the general laws can affect the constitution because o f Art .5 II G G so does the constitution, in its turn, affect them. T h e limitation has to be seen ' in the light o f the importance o f article 5'. A s a result it is necessary to search for equil ibrium between the competing values, i.e. the courts have to strive for a balancing o f the freedom o f expression and the col l iding value protected by the general law. T h i s theory amounts to the invocation o f the principle o f proportionality. 3. Proportionality A n a l y s i s T h e G e r m a n concept starts from the assumption that only by weighing all the circumstances o f the given case it can be decided whether the limitation o f the basic right is constitutional. In order to be justified the general law restricting expression has to be 'proportional' w h i c h means that it is v a l i d only i f it survives the proportionality analysis consisting o f three requirements. T h e law at issue has to be suitable for the achievement o f a legitimate purpose, necessary to that e n d 5 3 and the burden it imposes must not be excessive in the light o f the achieved benefits, i.e. its deleterious effects have to be proportionate to the salutary o n e s . 5 4 (In cases concerning freedom o f expression and the protection o f the reputation this means that the damage to personality resulting from a public representation must not be out o f proportion to the importance o f the publication upholding the freedom o f c o m m u n i c a t i o n . ) 5 5 5 1 Bonner Grundgesetz, supra n.32, Art.5 Rn.176, Degenhart. 5 2 BVerfGE 7, 198, 208-210 (Liith, 1958). 5 3 A limitation is necessary if there is no other means that can achieve the legitimate purpose equally effective but in a less intrusive way. 5 4 The disadvantages for the person concerned by the limitation have to be in an adequate proportion to the advantages this limitation aims to accomplish. Pieroth/Schlink, Grundrechte, Staatsrecht II, (11' ed., C F . Miiller Verlag, Heidelberg, 1995), Rn.300-324. 5 5 Here is yet another similarity to Canadian Charter scrutiny. The three step test there requires that the limiting law, which has to pursue a pressing and substantial purpose, is rationally connected to its objective, that it impairs the 103 In applying the last part o f the proportionality analysis for the determination o f the reasonableness o f a public exposure, i.e. w h e n answering the question whether the effects o f the limitation are indeed proportional, various factors have to be considered and each exposure must be assessed o n its o w n in light o f the fo l lowing 'weighing factors ' . 5 6 O n e important aspect is the subject matter o f the utterance. In case the subject deals with an affair o f public importance there is a presumption o f free s p e e c h . 5 7 T h i s does not mean that freedom o f expression has absolute priority in such cases. T h e presumption rather is a guideline within the balancing process and gives expression to the circumstance that courts favour political s p e e c h . 5 8 T h e publisher's motives also have to be taken into consideration, i.e. what he hoped to accomplish b y exposing someone i n the public spotlight. It depends o n whether the communicat ion advances knowledge and public debate or merely benefits the speaker. F o r example, to publ ish private information for a purely commercial goal, seeking to capitalize upon the marketing value o f somebody's personal characteristics at his expense, constitutes an invasion o f privacy. T h e balance w i l l then be in favour o f the personality right. Furthermore, the weighing o f interests must take into account the intensity o f the infringement o f the personal sphere . 5 9 T h e more severe the private intrusion the more l ikely freedom o f speech has to step back. T h e occasion o f an utterance can play an important role. O n e who suffered a severe attack on his honour i n public is justified to an otherwise excessive counter-attack (Gegenschlag). H e has the right no more than is necessary to accomplish the objective, and that it has a proportionate effect on the person to whom it applies 5 6 The factors described refer to the weighing process applied to cases involving freedom of expression and reputation. 5 7 BVerfGE 7, 198, 212 (Liith, 1958); BGHZ 139, 95, 102 (1998). 5 8 Georg Seyfarth, "Der Einflufi des Verfassungsrechts auf zivilrechtliche Ehrschutzklagen", NJW 1999, 1287, 1289. 5 9 BVerfGE 35, 202 (Lebach, 1973); Seyfarth, ibid, at p. 1290. 104 right to an appropriate reaction. T h e status o f a person, whether or not he is a public figure, w i l l also be relevant. O n e becomes a public personage w h o , b y his accomplishments, fame or mode o f l iv ing , or by adopting a profession or cal l ing gives the public a legitimate interest in his doings. S u c h a person tends to benefit from publici ty and his reasonable expectation o f privacy is significantly lower. Someone who deliberately seeks publici ty has to endure m o r e . 6 1 Other aspects influencing the balancing might be the way in w h i c h the information was obtained (for instance b y i l legal means), the extent o f the dissemination o f the publication, the accuracy o f the statement, or whether the publication could reasonably have been made with a less far-reaching interference, or even without any interference with the protection o f personality. E v e r y other social objective, w h i c h might be involved i n the dispute, has to be included in the balancing process. However , i f a limitation survived the proportionality analysis in general it is still possible that the application o f this limitation in the particular case excessively burdens the person concerned. F o r this reason it can be necessary for restricting laws to provide for exceptions in order to avoid 'excessively burdening' a single person. C . F r e e d o m o f Express ion and the Personality Right Constellations o f dispute with regard to freedom o f expression and defamation arise from c iv i l actions where a decision is made against one party, or f rom cr iminal litigation where one party is sentenced because o f defamation. T h i s party w i l l then call on the Federal Constitutional 6 0 BVerfGE 12, 113, 131 (Schmid/Spiegel, 1961). 6 1 BVerfGE 12, 113, 126 ff. In this context the institution of'person of contemporary history' is important which will be explained later on. 105 Court , and file a 'constitutional complaint' (Verfassungsbeschwerde) arguing that his basic right to freedom o f expression has not been sufficiently appreciated in rendering the previous judgement. W i t h i n this complaint the question is whether the regular court's decision under challenge is reconcilable with the complainant's right to freedom o f expression, in so far as his communicat ion is protected by article 5 o f the Constitution at all . T h e court's assessment i n the individual case especially depends on whether the communication i n question is classified as an opinion (in the sense o f value-judgement) or as factual assertion. W i t h opinions the subjective elements prevail and the listener can keep a certain distance more easily. If the recipient recognizes that a remark expresses the personal v iew o f another person with w h i c h he m a y or m a y not agree he realizes that he has the chance o f forming his o w n judgement whereas statements o f facts rather c la im to be objectively true. There is a situation o f acceptance towards factual statements with the consequence that such statements potentially threaten the reputation o f another more than the expression o f an opinion. T h i s is the reason for the distinction between the two kinds o f utterances. 6 2 I. Statements o f O p i n i o n A s already mentioned, statements o f opinion enjoy presumptive protection. A n extensive case-related balancing has to take place between the l imited basic right (freedom o f expression) and the legal value w h i c h the law l imiting this right serves (the protection o f the individual's honour) in accordance with the various factors described above. Here , usually freedom o f expression w i l l be favoured over the protection o f the individual's honour and reputation. T h e constitutional complaint w i l l be unsuccessful, however, in cases o f so-called 'defamatory 6 2 Dieter Grimm, "Die Meinungsfreiheit in der Rechtsprechung des BVerfG", NJW 1995, 1697, 1702. On the same ground, the common law defence of fair comment provides special protection to the utterance of opinions based on facts. This defence in defamation law also differentiates between comments and statements of facts. 106 criticism' (Schmahkritik) or 'formal insult' (Formalbeleidigung). T h e term formal insult refers to § 192 o f the Penal C o d e and covers statements where the existence o f an insult results from the form o f the assertion or dissemination, or from the circumstances under w h i c h it occurred. Defamatory crit icism, o n the other hand, occurs when the crit icism is not only relentless and insulting but leads to an intentional dishonour o f one's dignity. It is only accepted within very narrow limits, where the speaker gives special emphasis to the disparagement o f a person instead o f focusing o n the technical argument, thus, where considerations concerning the subject matter itself (as opposed to personal issues) take absolutely no effect . 6 3 II. Factual Assertions First o f all , the constitutional protection is restricted as far as factual statements are concerned since they are only covered i f they are prerequisites or the foundation o f the formation o f opinions. If this is the case it is decisive whether they are true or false. T h e substance o f truth in such statements influences the constitutional protection awarded to them. F o r true statements o f facts, the case-related balancing has to take place as w e l l , according to the weighing factors described above - similarly to cases where statements o f opinions are concerned. A l l the circumstances o f the particular case have to be taken into consideration and the court has to f ind an appropriate proportion between the severity o f the impairment o f freedom o f expression and the severity o f the impairment o f the col l id ing right to personal h o n o u r . 6 4 T h e Court has to keep in m i n d that the general personality right protects against indiscretions, against the disclosure o f private facts. T h e goal o f the protection o f personal development given b y articles 1 and 2 o f the Constitution is the maintenance o f the basic conditions o f social 6 3 BVerfGE 61, 1, 12 (NPD Europas, 1982); 82, 272, 283 (Zwangsdemokrat, 1990); Kriele, supra n.23, at p. 1899. 107 relationships between the person entitled to this basic right and his environment. A c c o r d i n g l y , this protection has to apply even i f statements are true, for instance i f they become a cause o f social exclusion and i so la t ion . 6 5 T h e right to an undisturbed private life secure from publicity might have priority over the public interest in k n o w i n g the truth. In this respect, the G e r m a n concept o f the general personality right is broader than that o f mere personal reputation under the c o m m o n law o f defamation, where the defence o f justification ensures that the plaintiff cannot recover damages i f true material is published. Thus , German and Canadian law treat truth slightly differently. W h i l e in Canada, the plaintiff has to put up with the publication o f true defamatory information (in that case the defendant benefits f rom the defence o f justification), he m a y not necessarily have to do so i n G e r m a n y . E v e n i f defamatory statements are i n fact true the right to undisturbed privacy m a y prevail , thereby restricting free expression. W i t h respect to true factual statements the courts have defined different spheres with a gradation o f protection accorded to the respective spheres. T h e classification into intimate, private and social spheres i n fact amounts to a graded test o f proport ionali ty . 6 6 T h e 'intimate sphere' is one o f the closest areas o f personality o f a h u m a n being. Examples are occurrences o f the sexual life, diaries, personal notes, or details o f medical examinations. It is the sphere o f inner feelings and thoughts where unauthorized coverage generally is not Grimm, supra n.62, at p. 1703. 6 5 In the Lebach case (BVerfGE 35, 202) the Court granted personality interests priority over broadcasting freedom because the transmission of a docudrama about a sensational crime was at a point close in time to the release of one of the perpetrators from imprisonment and would have made the reintegration of the person affected more difficult, if it did not entirely prevent it. (Impact of discriminatory consequences.) 6 6 Bonner Grundgesetz, supra n.32, Art.5 Rn.178, Degenhart. 108 a l l o w e d 6 7 and a balancing or 'weighing' o f the competing values can only take place by way o f exception. Here , even the dissemination o f a true statement can be a v i o l a t i o n . 6 8 T h e 'private sphere' covers the rest o f the private life, i.e. the closer family relations, descriptions o f the domestic life, religious convictions, pecuniary circumstances, letters w h i c h are not meant to be published, or the contents o f private communications. T h i s sphere is not confined to the area inside one's o w n house. It can also apply i f somebody has confined h i m s e l f to solitude and obviously wants to stay o n his o w n , or i f he behaves i n a special situation in a way in which he w o u l d never behave i n public because he trusts i n being secluded. Unless there is a prevailing public interest i n the information its publication is not al lowed without permission o f the person concerned. T h i s means that i f the public interest in the information outweighs the personal rights (for instance i f the press acts with the legitimate interest o f disclosing abuses) a right to publish can be granted. F inal ly , the 'social sphere' concerns the area o f public display, where personal development from the very beginning takes place ' i n the contact with the wor ld around' , i.e. where the person concerned acted i n public . C o v e r e d are the professional area and public activity in general, i.e. every relation to the outside wor ld . Here , communications in principle are a l l o w e d . 6 9 T o sum up, it can be said that at least i n cases o f heavy and unjustified intrusion into the individual's private life the protection o f personal honour regularly claims precedence over the 6 7 BVerfG 35, 202 (Lebach, 1973); there is no legitimate interest on such communications. 6 8 The reason for the strong protection in this area is that there has to be a sphere in which the individual remains unobserved and on his own, in which he can interact with people of his particular trust without consideration of social behavioural expectations, i.e. a sphere in which no libel is possible. Such a possibility to retreat is important for the development of the personality because there, the aspect of the articulation of a statement stands less in the foreground than the aspect of self-development. On these occasions it may come to statements of such content or form which would be avoided in regular situations. Compare: BVerfGE 90, 255 (Ausschwitzliige, 1994). 6 9 BVerfGE 10, 354, 371 (1960). 109 freedom o f expression although this is only a balancing rule, or 'guideline' w h i c h does not hold without exception. Apart f rom this, the protection accorded to the individual , as well as the divis ion into spheres, depends on the individual's o w n behaviour. If their private information is already i n the public domain, the courts w i l l be reluctant to accord privacy protection, i.e. someone who submits information about his intimate sphere to the public loses the protection in this connection. Those who participate i n the public debate have to accept that the public w i l l critically deal with them i n turn and i f someone expresses crit icism i n public he has to reckon with counter-attacks. 7 1 Generally , i f a legitimate public interest exists with regard to an individual , he has to put up with the dissemination o f facts concerning his private life to a greater extent. 7 2 In this connection, 'persons o f contemporary history' form an important category o f reduced constitutional protection. First, there are 'absolute persons o f contemporary history' , referring to persons who have a special place in society because o f their position i n society or because o f their extraordinary achievement. A m o n g these persons are important politicians, athletes, musicians or leading figures i n the economic sphere. A second group are 'relative persons o f contemporary history' , covering people who have become prominent because o f their connection to a current event o f contemporary history. T h e latter can only be portrayed i n context with the contemporary event . 7 3 False factual assertions that injure someone's reputation generally do not have to be accepted. In 7 0 Friedrich Kiibler, "Ehrschutz, Selbstbestimmung und Demokratie", JZ 1984, 541, 545; Bonner Grundgesetz, supra n.32, Art.5 Rn.181, Degenhart; Yet, the court will investigate in such cases whether a full identification of the person concerned is necessary or in effect is part of a gold-digging operation on the part of the publisher who obviously was driven by commercial motives. This shows again that German courts distinguish between speech which informs and speech which is mere gossip and is motivated by greed. 7 1 Fundamentally: BVerfGE 35, 202 (Lebach, 1973). 7 2 BVerfGE 12, 113, 126 (Schmid/Spiegel, 1961). 7 3 Bonner Grundgesetz, supra n.32, Art.5, Rn.181, Degenhart. 110 cases where the falsity o f the statement was evident and certain beyond doubt at the time o f the utterance this statement w i l l not be constitutionally protected at all , i.e. freedom o f expression cannot be i n v o k e d i n the first place. If it is not clear whether the statement was in fact false, i f the person w h o made the statement was not aware o f its falsity the onus o f p r o o f with respect to the truth is o n h i m with the result that falsity is presumed in case he is not able to meet his burden. Therefore, the speaker bears the risk o f not being able to prove the truth o f his a l legat ion. 7 4 H o w e v e r , the courts have stressed that the demands made with respect to the burden o f p r o o f as w e l l as the duty o f care o n the part o f the speaker should not be too high in order to prevent a chi l l ing effect on free speech since people might be deterred from giving voice to their o p i n i o n i n case o f a very high standard o f p r o o f . 7 5 (For instance, courts have to take into account that the possibilities o f making investigations differ depending on whether the media or a single person is concerned.) III. C o n c l u s i o n In summary, the protection o f honour usually claims precedence over freedom o f expression in cases where statements o f opinion impair the content o f human dignity contained in the personality rights because o f article 1, or where such statements amount to 'defamatory criticism'. or ' formal insult'. Furthermore, the right to personal honour w i l l l ikely take priority over free speech i f the speaker d i d not meet the requirements o f his duty o f care when communicat ing factual assertions that were false. A s for the rest, there has to be a case-related weighing between the col l iding values including all the circumstances o f the particular case. If the publication touches upon a question o f public concern this does not automatically mean that freedom o f expression has priority but it gives rise to a presumption o f free speech. In such cases the requirements for an explanation are heightened should the court decide in favour o f the 7 4 B G H Z 139, 95, 104 (1998). I l l right to personal honour. In a w a y it is ironic that freedom o f expression receives a m u c h stronger protection in G e r m a n y than it does in Canada. T h e G e r m a n Constitution confers at the interest in the individual's reputation a higher value than the Canadian Charter does. Nevertheless, freedom o f expression more often prevails i n litigation whereas Canadian courts favour the protection o f reputation. 7 5 BVerfGE 54, 208, 220 (Boll/Walden, 1980); 42, 163; BGHZ 139, 95, 106 (1998). 7 6 To complete the description of the situation in Germany it should be added that opposition exists with regard to the decisions of the Constitutional Court. Voices in literature disagree with the court, complaining about the 'elimination of the protection of honour' against disparaging communications and about the discrimination of persons of contemporary history. They claim that the Federal Constitutional Court misjudges the significance of honour, allows 'character assassination' (for instance: Christian Stark, "Verfassungsgerichtsbarkeit und Fachgerichte", JZ 1996, 1032) and moreover accuse the court of exceeding its authority. (See: Kriele, supra n.23, at p. 1897; Walter Schmitt Glaeser, "Meinungsfreiheit, Ehrschutz und Toleranzgebot", NJW 1996, 873). There certainly is a trend to (over) emphasize speech values and a greater willingness to review the constitutionality of the decisions of ordinary courts. 112 C H A P T E R 5: H o w d o other C o m m o n L a w J u r i s d i c t i o n s b a l a n c e the t w o C o m p e t i n g V a l u e s ? T h e Canadian concept o f balancing freedom o f expression and reputation basically is determined by the case Hill v. Church of Scientology of Toronto. Before dealing with the Canadian solution, however, it is necessary to have a look at two other cases w h i c h had been decided b y c o m m o n law countries prior to Hill and to w h i c h the Supreme Court o f Canada referred: New York Times Co. v. Sullivan, decided by the U . S . Supreme Court , and the decision o f the Austral ian H i g h Court i n Theophanous v. Herald Weekly Times. A . U n i t e d States: N e w Y o r k T i m e s C o . v. Sul l ivan A m e r i c a n defamation law derived, l ike Canadian defamation law, f rom the E n g l i s h c o m m o n law tradition. Consequently, Canadian and U . S . l ibel laws used to be very similar. In 1964 the case o f New York Times v. Sullivan brought a change to this close resemblance by revolutionizing the A m e r i c a n law. There, the Court was required to decide the extent to which the constitutional protection for speech and press l imited a state's power to award damages in libel actions. It held that the traditional tort rules were subject to the overriding constraints o f the First A m e n d m e n t . In this case, the local city commissioner, M r . Sull ivan, sought compensation for injury to his reputation caused b y some factual misstatements i n a paid polit ical advertisement run in the N e w Y o r k T i m e s newspaper by a group o f nationally prominent c i v i l rights advocates. T h e editorial criticized the handling o f c i v i l rights demonstrations in M o n t g o m e r y and made 113 reference to the volatile situation in A l a b a m a . It included statements about police action directed against black students who participated in a c i v i l rights demonstration and recounted, at times inaccurately, several instances o f misconduct b y "Southern violators", who b y clear implication at least partly had to be public officials. Neither o f the statements mentioned the plaintiff b y name. But M r . Sul l ivan argued that, as he was generally responsible for the police i n M o n t g o m e r y the imputations against the police referred to h i m as Commissioner , as supervisor o f the police department. A n A l a b a m a jury had returned a verdict awarding the plaintiff ha l f a m i l l i o n dollars in damages according to the A l a b a m a c o m m o n law o f defamation and the award was affirmed on appeal to the State Supreme Court . T h e U . S . Supreme Court , however, reversed the lower court's holding and decided that the traditional law o f defamation infringed upon the constitutional rights o f free speech and free press. Foremost, the Court stressed the tremendous importance o f the citizen's right to criticize government officials i n a democratic society. 2 It pointed out that 'debate on public issues should be uninhibited, robust, and wide-open, and that it m a y w e l l include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public off ic ials . ' 3 T h e circumstance that crit icism o f off ic ial conduct is effective and diminishes the reputation o f the officials i n v o l v e d was held to not deprive this criticism o f its constitutional protection. 4 1 (1964), 376 U.S. 254; the opinion of the majority was written by Brennan J. 2 At p.269 the Court referred to the 'marketplace of ideas' theory and emphasized the significance of unfettered interchange of ideas. Then it continued: 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.' (Stromberg v. California, 283 U.S. 359, at p.369). 3 Ibid, at p.270 (Brennan J.). 114 T h e n it was recognized that the c o m m o n law o f defamation had a 'chil l ing effect' on political speech w h i c h m a y lead to suppression o f matters o f public interest and o f other issues that ought to receive public scrutiny and debate. In this respect, Brerman J. pointed out that, since it is often difficult to produce legal proofs that the alleged l ibel was true i n its factual particulars, the necessity o f proving truth as a defence does not deter false speech only. H e stated that a rule ' compell ing the critic o f off icial conduct to guarantee the truth o f all his factual assertions w i l l be intolerable self-censorship' and that under such a rule 'would-be critics o f off icial conduct m a y be deterred f rom v o i c i n g their criticism, even though it is believed to be true and even though it is i n fact true, because o f doubt whether it can be proved in court or fear o f the expenses o f having to do so' . 5 T h u s , the Court ruled that the existing c o m m o n law o f defamation violated the guarantee o f free speech under the First A m e n d m e n t o f the Constitution. T h e solution adopted was to do away with the c o m m o n law presumptions o f falsity and malice and introduce the requirement o f 'actual malice ' . 6 It was held that in cases where defamatory statements are made i n respect o f public officials the plaintiff can o n l y recover damages for defamation relating to his off icial conduct i f he proves through clear and convincing evidence that the defendant acted with knowledge o f the falsity o f his statement or with reckless disregard as to whether it was false or not . 7 Consequently, the public off icial plaintiff has not only to prove that the statement is false and defamatory but also that the defendant either knew that he was not publ ishing the truth or consciously held serious doubts as to the truth o f his statement. (Indifference to truth or falsity is not enough to satisfy the concept o f 'reckless disregard'.) Thereby, a qualified privilege for criticism o f official conduct was created. 4 Ibid, atp.273. 5Ibid,atp.279. 6 Ibid, at p.279: 'The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'. 115 It is important to note that 'actual malice' in this respect in a narrower concept than that o f c o m m o n law malice , w h i c h w i l l defeat a c la im to the c o m m o n law defence o f qualified privilege. T h e constitutional standard o f malice adopted in New York Times has nothing to do with i l l w i l l , hostility, or bad or improper motive but refers only to the defendant's subjective awareness o f the probable falsity o f his allegations. H i s motives are irrelevant to liability since the essence is the relationship between falsity o f the statement and knowledge on the part o f the defendant. A l s o , negligence is not sufficient, i.e. a lack o f reasonable care prior to publication does not satisfy the actual malice requirement. T h e Supreme Court's decision m o d i f i e d the c o m m o n law o f defamation i n various ways. O n the one hand, instead o f requiring the defendant to justify his allegations, the burden o f proof with respect to falsity o f the imputations is o n the public off icial plaintiff n o w ; falsity o f the defamatory statement is no longer presumed. Moreover , the Court held that a public off icial plaintiff must prove with convinc ing clarity that the statements relating to his off icial conduct were false to the knowledge o f the defendant or that he acted with reckless disregard in that respect, i.e. the onus o f p r o o f is raised from a preponderance o f probabilities to proof with convincing clarity, a standard more rigorous than the one normal ly applied to c i v i l actions. 8 Final ly , an element o f fault is added to the tort o f defamation. T h e defendant is not liable irrespective o f fault anymore. It is to add, that three concurring justices, B l a c k , Douglas and G o l d b e r g , even suggested there should be an absolute bar o f l ibel actions b y public officials. In their separate reasons they held 7 Ibid, atpp.279-280. 8 Ibid, atpp.285-286. 116 that the T i m e s had an unconditional right to publish their criticisms about public affairs. B . Austral ia : Theophanous v. H a r o l d & W e e k l y T i m e s Austral ian defamation law traces back to the E n g l i s h c o m m o n law tradition as wel l since Austral ian colonies early accepted that the general principles o f the c o m m o n law did apply in the Austral ian States. Except so far as it has been altered since then b y the Australian Parliaments it is still the l a w . 9 Therefore, Australian and Canadian law o f defamation is similar. T h e Austral ian constitution, however, does not contain a B i l l o f Rights explicitly conferring freedom o f expression constitutional protection. Instead the Austral ian H i g h Court has distilled an implicat ion o f freedom o f communicat ion f rom the provisions and structure o f the Constitution, particularly from the concept o f representative government w h i c h is enshrined in the Const i tu t ion . 1 0 T h e relationship between this impl ied freedom and the c o m m o n law o f defamation, especially the question whether the impl ied constitutional guarantee is apt to protect the publication o f material discussing the performance o f duties o f members o f Parliament, was treated in Theophanous v. Harold Weekly Times.11 T h i s case arose out o f the initiation o f defamation proceedings against a newspaper by a member o f the C o m m o n w e a l t h Parliament who was also chairperson o f a committee on migration regulations. T h e newspaper had published a letter to the editor critical o f M r . 9 BlackshielaVWilliams/Fitzgerald, Australian Constitutional Law Theory, (The Federation Press, Riverwood, NSW, 1996), at pp.132. 1 0 In the cases of Australian Capital Television Pty Ltd v. Commonwealth (1992), 108 A.L.R.577 and Nationwide News Pty Ltd v. Wills (1992), 108 A.L.R.681 the implied freedom of communication was acknowledged with respect to discussion of government and political matters, i.e. 'political discussion'. It includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those 117 Theophanous' views o n Australia's immigration policies, w h i c h accused h i m o f bias arising from his o w n ethnic background and questioned his fitness to hold office as a M e m b e r o f Parliament. T h e matter was removed to the H i g h Court because the defence pleaded that the publication was pursuant to a freedom guaranteed b y the Australian Constitution to publish certain political material. First o f all , the court recognized that the impl ied constitutional freedom, w h i c h was held to apply i n the case, not only is a restriction o n legislative and executive power but also shapes and controls the c o m m o n law. Correspondingly, the development o f the c o m m o n law must accord with the content o f the implicat ion o f f r e e d o m . 1 2 R e l y i n g o n New York Times v. Sullivan the court then noted that the c o m m o n law o f defamation had a 'chil l ing effect' o n political speech. T h e balance reflected in the c o m m o n law defences was regarded to tilt too far in favour o f the protection o f the individual 's reputation at the expense o f freedom o f communicat ion with the consequence that the current law o f defamation was unconstitutional . 1 3 However , the Austral ian H i g h Court rejected the unconditional adoption o f the 'actual malice rule' established in the Uni ted States without changes. It m o d i f i e d the c o m m o n law rule i n a different way. Instead o f requiring the public off icial plaintiff to prove actual malice o n the part o f the defendant wi th convinc ing clarity, the Court decided it was for the defendant to establish that he did not k n o w the defamatory statement was false and was not reckless as to whether it was false or true. C o n c e r n i n g the substance o f the constitutional defence, the defendant additionally had to seeking public office as well as the discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate. " (1994) 124 A.L.R.I; the majority judgement was delivered by Mason CJ., Toohey and Gaudron JJ. 1 2 Ibid, at p. 15. 1 3 Ibid, at pp. 19 and 20. 118 prove that the publication was reasonable in the circumstances, i.e. he had to show that he either had taken steps to check the accuracy o f the impugned material or that he was otherwise justified in publ ishing without taking such steps or steps w h i c h were adequate. 1 4 If these requirements are met the publication is a publication on an occasion o f qualified privilege and not act ionable . 1 5 O n e significant difference to the U . S . Supreme Court's decision is that the burden o f proving the (three parts o f the) defence, i.e. no knowledge o f falsehood, absence o f recklessness and reasonableness o f the publication, rests o n the defendant. Apart from that, it is irrelevant whether the defamatory imputation is in fact true or false since the test focuses on the defendant's bel ief in t ruth . 1 6 M o s t important to note is that the defence articulated in Theophanous operates only i n respect o f political discussion, the only expression protected b y the impl ied freedom o f communication. T h e H i g h Court's decision also had consequences for the c o m m o n law defence o f qualified privilege. It was noted that this defence w o u l d have little applicability where a publication occurs i n the course o f the discussion o f political matters (which w i l l be protected b y the constitutional freedom) and that it w o u l d need to be reconsidered in the light o f the implied 17 constitutional guarantee. W i t h regard to the notion o f reciprocal interest and duty contained i n the c o m m o n law privilege the Court held that the public at large has an interest in the discussion o f polit ical matters such that every person has an interest i n communicat ing his views on those matters and every person 1 4 Ibid, at p.23; In order to establish that he acted reasonable, the defendant basically had to show that he had taken reasonable steps to verify the truth of the published statement. 1 5 Ibid, at p.26. 16Ibid,atp.24. 1 7 Ibid, atp.25. 119 has an interest i n receiving information on those matters. 1 8 T h u s , the Austral ian H i g h Court , without having a general constitutional provis ion explicitly protecting freedom o f expression, accorded a considerably stronger protection to this fundamental right than the Canadian Supreme Court d id in Hill v. Church of Scientology, as I w i l l show i n the fo l lowing chapter. F inal ly , one judge, Justice D e a n , took the v iew that absolute constitutional immunity should be granted where statements about the official conduct or the suitability o f a M e m b e r o f Parliament for his office are published, i.e. i n such cases the application o f defamation laws should be precluded completely. Ibid, at p.26. 120 C H A P T E R 6: R e - T h i n k i n g the C a n a d i a n L a w o f D e f a m a t i o n T h i s chapter deals wi th the questions whether defamation law in Canada has achieved the correct balance between freedom o f expression and the protection o f personal reputation, or whether it needs to be m o d i f i e d i n order to c o m p l y with the Charter and what such a modificat ion might look like i n case it found to be necessary. T h e attitude o f the Supreme Court o f Canadian i n this respect was presented in Hill v. Church of Scientology. Therefore, I w i l l first o f all , review this decisions. M y critical look at the Hill case and more generally at the c o m m o n law o f defamation itself w i l l reveal that the c o m m o n law o f defamation, i n m y opinion, does not take freedom o f expression sufficiently into consideration. I w i l l also discuss the issue o f Charter application to the c o m m o n law o f defamation and argue that the c o m m o n law should be subject to s ! o f the Charter just as statutory law. Final ly , proposals for changing defamation law i n order to constitutionalize it w i l l be introduced. A . H i l l v . C h u r c h o f S c i e n t o l o g y T h e starting point for the question o f the Charter's impact on Canadian defamation law is Hill v. Church of Scientology^ where the Supreme Court o f Canada finally was asked to reconsider the c o m m o n law o f defamation in the light o f the Charter protection o f freedom o f expression. T h e Court , however, neither adopted the actual malice rule introduced i n New York Times v. Sullivan, nor the defence o f qualified privilege found in Theophanous v. Herald Weekly Times, Further, it d i d not fol low the radical approach o f an absolute bar o n defamation actions suggested b y minorities i n both o f these cases. Instead, the Supreme Court refused to alter the 121 c o m m o n law o f defamation and opted to retain the strict liability standard as the appropriate balance between reputation and freedom o f expression. I. T h e Court's D e c i s i o n in H i l l T h e plaintiff i n this case, M r . H i l l , was a lawyer employed with the M i n i s t r y o f the Attorney General i n Ontario. H e had acted for the C r o w n on legal matters arising f rom the seizure of documents belonging to the C h u r c h o f Scientology and was accused b y the latter o f having violated court orders sealing these documents. A t a press conference counsel for the C h u r c h o f Scientology announced that contempt proceedings were being instituted against H i l l and read the contempt mot ion alleging that H i l l had breached the order o f the court and had misled the judge. B o t h allegations were factually untrue and the application for contempt was ultimately dismissed. Af ter H i l l was exonerated he sued the C h u r c h o f Scientology and its lawyer for defamation. D u r i n g the trial the defendants continued to attack the plaintiff, repeating the libel despite prior knowledge that the allegations were false, and maintained their plea of justification. T h e jury awarded H i l l a total o f $ 1.6 m i l l i o n i n damages ($ 300,000 general damages against both defendants and $ 500,000 aggravated damages as w e l l as $ 800,000 punitive damages against the C h u r c h o f Scientology). O n appeal the j ury assessment was affirmed. Before the Supreme Court o f Canada the defendants challenged the constitutionality o f the c o m m o n law o f defamation. T h e first question was, whether the c o m m o n law could be subject to Charter scrutiny at all. T h e Court affirmed Dolphin Delivery in holding that s.32(l) restricts the Charter's application to the actions o f legislative, executive and administrative branches o f government and that the constitutionality o f c o m m o n law rules and principles can only be examined i n so far as the 1 (1995), 126 D.L.R. (4th) 129. 122 c o m m o n law is the basis o f some governmental action w h i c h allegedly infringed a Charter right. 2 W i t h respect to this, the Court held that neither H i l l ' s employment as a public official itself, nor the fact that the defamatory statements were made in relation to acts undertaken in his official capacity, automatically engaged the Charter. Furthermore, there was not to be a division between his personal reputation and his reputation as a public off ic ial . Instead, the Court focused o n H i l l ' s initiating the libel suit in response to the allegations impugning his o w n character, competence and integrity. Since he brought the action i n his personal capacity, not instructed or obliged to do so b y the government, he was acting outside the scope o f his statutory duties and independently of, as w e l l as distinct f rom, his status as agent for the government. A c c o r d i n g l y , the criteria for government action were not met. However , i n Dolphin Delivery it was also held that the c o m m o n law could be subjected to some sort o f constitutional scrutiny i n the absence o f government action because o f s.52(l) o f the Constitution Act, 1982. In this respect, the Court in Hill reconfirmed the rule laid d o w n in Dolphin Delivery, that the c o m m o n law should be applied and developed in a manner consistent with the values enshrined in the Constitution and, thus, agreed to measure the c o m m o n law o f defamation against the Charter's underlying values. 3 It stressed the distinction between Charter rights and Charter values, explaining that the first could not be asserted b y private litigants in the absence o f government act ion 4 , and elucidated 2 R. W.S.D. U. v. Dolphin Delivery Ltd., [1986] 33 D.L.R. (4th) 174, at p.195. For the application of the Charter also see chapter three above. 3 Ibid, at p. 198.1 have already referred to this issue in chapter three. 4 In Hill v. Church of Scientology of Toronto (supra n.l, at p. 157) it was held that while the cause of action is founded upon a Charter right when government action is challenged (the claimant alleges that the state has breached its constitutional duty, and the state, in turn, must justify this breach), private parties owe each other no constitutional duties and therefore cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because Charter rights do not exist in 123 the consequences o f this distinction. O n e consequence was, that i n a conflict between principles and values the traditional s . l analysis was not appropriate. Instead, a more flexible balancing, i.e. weighing, o f the values at issue was necessary. 5 T h e values o f the Charter were said to provide the guidelines for any modificat ion to the c o m m o n law. Furthermore, the court fashioned an onus shift. It held that the party alleging that the c o m m o n law is inconsistent wi th the Charter should bear the onus o f provi ng both that the c o m m o n law threatens Charter values and that, w h e n these values are balanced against other competing interests, the c o m m o n law should be m o d i f i e d . 6 T h i r d l y , the Supreme Court , referring to R. v. Salituro1', had recognized that courts i n general have the responsibility o f scrutinizing the c o m m o n law in light o f the Charter and o f making incremental changes w h e n appropriate in order to have the c o m m o n law c o m p l y with Charter values. Nevertheless, it emphasized that far-reaching changes to the c o m m o n law have to be left to the legislatures. H a v i n g determined that the c o m m o n law should be developed i n accordance with the Charter's underlying values, the Court went o n to consider whether the c o m m o n law o f defamation struck an appropriate balance between freedom o f expression and the value o f personal reputation. Af ter briefly recognizing the importance o f freedom o f expression the Court stressed that this right had never been regarded as absolute and has o n occasion given w a y to other competing values. It was clarified, that freedom o f expression should not predominate s imply because it is protected b y the Charter, especially in the case o f defamatory expression. Because o f its the absence of state action. The most the private litigant can do is argue that the common law is inconsistent with Charter values. 5 Ibid, at p. 157. 6 Ibid, at p. 157. Usually one party must prove a prima facie violation while the other bears the onus of defending it. 7 [1991] 3 S.C.R. 654, at p.670: 'The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the ... fabric of our society.' 8 Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129, at p.156. In this respect s.52(l) needs to be kept in mind, which renders inoperative any law that is inconsistent with provisions of the Constitution. 124 considerable distance f rom the core principles underlying free expression, defamatory speech was regarded as particularly vulnerable. It was held that defamatory statements are tenuously related to the core values w h i c h underlie s.2(b). T h e Court was o f the opinion that false and injurious statements are inimical to the search for truth and cannot enhance self-development. T h e y discourage participation in public affairs o f the community , are detrimental to the advancement o f these values, and harmful to the interests o f a free and democratic society. 9 In the course o f the assessment o f the values to be balanced the Court further reaffirmed the importance o f personal reputation to a person's self-worth and dignity. N o t i n g the consistent sanction o f defamation across communities and throughout history, personal reputation was declared to be the fundamental foundation o n w h i c h people are able to interact with each other in social environments . 1 0 T h e judges tied the individual's reputation, although not explicitly protected b y the Charter, to the innate dignity o f the individual and associated it with the right to privacy, w h i c h has been accorded constitutional protection in s.8. T h u s , reputation was given a quasi-constitutional stature. 1 1 T h e Court proceeded to review the decision in New York Times. Here , it gave an extensive account o f A m e r i c a n scholarly opinion criticizing the actual malice rule, and added that this standard had been rejected in the U n i t e d K i n g d o m as w e l l as b y the Austral ian H i g h Court in Theophanous v. Herald Weekly Times. In view o f this, it refused the adoption o f the remedy proposed b y the U . S . Supreme Court . 9 Ibid, at pp. 159-160. 1 0 Ibid, at pp. 161-162. " Ibid, atp.163. 125 T h e judges pointed out that it was not unduly onerous for people to have to ascertain the truth o f statements before their publication, and that the public is not wel l served b y permitting the circulation o f defamatory facts o n matters o f public interest. Apart from that, the available defences provided b y the law o f defamation were regarded as sufficient to protect the public's interest in free s p e e c h . 1 2 F o r these reasons, the Court d id not agree that the law failed to balance appropriately the interests o f free speech and the reputation o f individuals. It concluded that the c o m m o n law o f defamation was consistent with Charter values and did not need to be m o d i f i e d . However , the Court was careful to absolve the law o f defamation only i n its application to the parties in the action at bar. T h e conclusion was rather cautiously formulated, saying that the c o m m o n law o f defamation, ' in its application to the parties in that action, c o m p l i e d with the underlying values o f the Charter . ' 1 3 It can be inferred that judic ia l reconsideration o f the c o m m o n law as it might apply i n a different context is possible, w h i c h indicates that issues still remain for other cases with different circumstances. II. Cri t ical R e v i e w o f the D e c i s i o n in H i l l T h i s decision is vulnerable to attack. T h e Court d id not give convincing reasons for its conclusion o f rejecting any modificat ion to the c o m m o n law. Admit tedly , the facts o f the case were c o m p e l l i n g with the defendants' knowledge o f the falsity o f their allegations. This probably explains the absence o f a careful and thorough analysis o f the existing c o m m o n law and its alternatives. T h e debate in the case was l imited to a discussion between the current regulation o f defamation and the actual malice standard. T h e Court d id not consider at all 1 2 Ibid, atp!69: 'Surely it is not required too much of individuals that they ascertain the truth of the allegations they publish. The law of defamation provides for the defences of fair comment and qualified privilege. Those who publish statements should assume a reasonable level of responsibility.' 126 whether a 'no-fault law' was appropriate, and failed to give consideration to other approaches such as, for instance, a plain negligence standard. In order to distance itself f rom the A m e r i c a n solution, the Supreme Court o f Canada was s imply driven into the opposite extreme. However , the reasons offered to justify the precedence o f reputation over free expression are not persuasive and their weakness w i l l be described in the fol lowing. 1. Defamatory Speech's W e a k C l a i m to Constitutional Protection T h e Court started b y disparaging the value o f defamatory statements as a type o f expression saying they were detrimental to the enhancement o f the values underlying s.2(b) and therefore do not deserve m u c h protection. T h i s conclusion contrasts with earlier findings. In Irwin Toy the Court defined 'expression' very broadly, stating that s.2(b) extended constitutional protection to all activity conveying, or trying to convey a message, regardless o f its content and no matter h o w offensive the message m a y be to the major i ty . 1 4 T h i s holding was reaffirmed i n R. v. Zundel15, a case concerning hate speech. There, the accused was convicted o f the cr iminal offence o f spreading false news w h i c h he knew to be injurious to the public interest, contrary to section 181 o f the C r i m i n a l C o d e and the judges agreed that the particular section violated s.2(b) o f the Charter although it covered only deliberate falsehoods. T h e y rejected the argument that the prohibited material d id not further the purposes o f freedom o f expression, but instead, regarded deliberate falsehoods as deserving constitutional protection. C r u c i a l for this decision was the difficulty o f assessing whether a statement is true or false for the purpose-of determining constitutional protection. T h e conclusion concerning falsity can only 1 3 Ibid, at p. 170. 14 Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927, at p.969, 'We cannot... exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.' 1 5 [1992] 2 S.C.R. 731. 127 be drawn b y referring to the contents o f the statement w h i c h w o u l d contravene the concept o f content neutral i ty . 1 6 In the Court's view, the distinction between truth and falsity as the decisive criterion for the determination o f whether a message is protected or not was not advisable in a constitutional context. T h e same basic idea should apply to defamatory statements where the question whether a statement is defamatory or not also can only be answered by referring to its contents. The defamatory nature o f an expression, however, does not change the fact that it conveys, or tries to convey a meaning, thus, that it has expressive content. A s held by the Court , the content o f a statement should not determine whether it falls within s.2(b). Moreover , the defamatory nature o f an allegation w i l l only be assessed at trial, usually quite some time after the publication. Saying that a defamatory statement has a weak c la im to constitutional protection thus means that the scope o f expression in s.2(b) w i l l be determined by an ex post j u d i c i a l characterization. Yet , the fundamental right o f freedom o f expression certainly comprises more than statements w h i c h are either proven factually accurate at trial, or do not injure someone's reputation 1 7 - especially considering the holding i n Irwin Toy that all messages are covered b y s.2(b), as long as they (try to) convey a meaning. T h e fundamental right to freedom o f expression is so important that even those statements at the 1 6 McLachlin declared in the majority judgement in R. v. Zundel, [1992] 2 S.C.R. 731, at p.758 that the court should be entirely certain that there can be no justification for offering protection and that the 'criterion of falsity falls short of the certainty, given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity.' Apart from that, false messages were held to also serve the values which freedom of expression seeks to promote, for instance the search for truth, since wrong information might lead to right conclusions. 1 7 Denis Boivin, "Accommodating Freedom of Expression and Reputation in the Common Law of Defamation", (1997) 22 Queens Law Journal 229, at p.270. 128 far periphery o f its reach are entitled to constitutional protect ion. 1 8 T h e broad purposive interpretation given to s.2(b), w h i c h is supported by the language o f the Charter, supports the conclusion that defamatory speech must be constitutionally protected. S u c h expression m a y arguably serve useful social purposes. Protection under s.2(b) is especially important where polit ical expression is concerned, for instance, in the case o f injurious statements about public officials. A c c o r d i n g to the democracy rationale o f freedom o f expression the legitimacy o f government requires the consent o f the citizens. Stories about political happenings are an essential ingredient o f such consent and should therefore be treated i n a more tolerant fashion in order to give the voting member the fullest possible participation in a democratic society. H e must be free to discuss and debate issues even i f such discussion results in defamatory speech. Therefore, the scope o f acceptable crit icism should be defined more broadly w h e n politicians are concerned. In order to ensure that democracy can exist, political opposit ion must be al lowed and in the course o f opposition defamatory speech is inevitable. In a vigorous debate on contentious issues, for example, participants often use harsh words and try to undermine the credibility o f their opponents' ideas. Yet , such debate is essential to the maintenance and functioning o f democratic institutions. Moreover , the checking function o f free expression supports defamatory speech. If an official's abuse is indeed addressed and criticized this w i l l necessarily happen in a defamatory form. T o accuse someone o f misconduct i n his office w i l l inevitably lower his prestige in the esteem o f others and cause h i m to lose respect. However , public scrutiny in this respect is important in order to deter authorities from abusing their power, and defamatory accusations are justified anyway i f they are true. E v e n outside the polit ical arena the protection o f defamatory expression is justified. After all , it 1 8 David Lepofsky, "Making Sense of the Libel Chill Debate: Do Libel Laws 'Chill' the Exercise of Freedom of 129 is possible that published imputations are true, i n w h i c h case they generally contribute to the discovery o f truth with respect to their subject matter. In view o f the difficulty o f determining whether a communicat ion is true or false it is not advisable to s imply exclude a whole type o f expression from constitutional protection. A s M i l l stated, the decision to suppress expression on the grounds o f its falsity requires infallibili ty o n the part o f the decision maker. Apart from that, certain opinions are incapable o f being proved either true or false but can still be valuable. Furthermore it is important with regard to individual self-fulfilment to acknowledge that the individual must be free to communicate his o w n judgements on circumstances and persons, even i f the courts w i l l regard them as defamatory. C o m m u n i c a t i o n is fundamental to human existence. It is important for the welfare o f the individual to relate to others and to exchange ideas. S u c h an exchange contributes to the forming o f one's opinions and thus to achieving greater autonomy. In Irwin Toy it had been recognized that freedom o f expression was entrenched i n the Constitution to ensure that 'everyone can manifest their thoughts, opinions, beliefs, indeed all expression o f the heart and m i n d , however unpopular, distasteful or contrary to the mainstream. ' 1 9 T h u s , defamatory statements do play a justifiable role in a democratic society. T h e y are supported b y the rationales o f freedom o f expression and cannot carelessly be excluded from the scope o f this fundamental right. Apart f rom that, the m a i n issue is not whether defamatory expression has any inherent value but how m u c h r o o m is to be left to citizens and the media to make errors, w h i c h may result in false and defamatory statements, i n commenting about matters o f important public interest or Expression?", (1994) 4 N.J.C.L. 169, at p. 190. 19 Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927, atp.968. 130 c o n c e r n / 0 Certainly, injurious criticism m a y contain factual errors and cause harm to people's reputations. H o w e v e r , a critical statement might only accidentally be based o n errors. T h e speaker might have stated an honest bel ief in a mistaken state o f facts, or might have published minor inaccuracies. T h i s circumstance alone should not be sufficient to consider a whole type o f expression generally to be deserving less protection. W h i l e the harm caused creates a counterbalancing interest it does not justify complete deprivation o f protection. 2 1 A t any rate, the judges in Zundel had concluded that the assessment o f harmful consequences is more properly done under the Charter s .l 's reasonable limit c lause . 2 2 T h e same approach is fol lowed b y the G e r m a n courts, where only those factual assertions w h i c h are evidently false (to the knowledge o f the speaker) at the time o f their utterance, are excluded from the start. Otherwise, the extent o f constitutional protection o f defamatory statements w i l l be determined within the proportionality stage o f the article 5 analysis. In view o f the above, defamatory statements should not be excluded f rom the scope o f freedom o f expression per se in order to let the protection o f reputation prevail . 2. D u t y to ascertain the T r u t h o f Allegations T h e Court in Hill proceeded to say that it was not requiring too m u c h o f individuals that they ascertain the truth o f the allegations they p u b l i s h . 2 3 T h i s suggests that verification o f statements prior to their publication in fact can determine their truth or falsity. Yet , it is only an assumption that investigations w i l l avoid the representation o f false facts . 2 4 T o check communications for 2 0 Raymond Brown, The Law of Defamation in Canada, (2nd ed., vol.4, Carswell, Toronto, 1999), at p.27-8 (in note 1 le). This problem will be further discussed later on. 2 1 June Ross, "The Common Law of Defamation Fails to Enter the Age of the Charter", (1996) 35 Alta.L.Rev. 117, atp.133. 2 2 [1992] 2 S.C.R. 731,atp.759. 23 Hill v. Church of Scientology, supra n.l, atp!69. 2 4 Boivin, supra n.17, at p.241. 131 their truth w i l l help i n several ways. In case the investigation reveals their falsity, allegations can be m o d i f i e d i n order to represent reality. If they are found to be essentially true, they can be published regardless o f their defamatory nature without fear. H o w e v e r , it is also possible that extensive inquiries do not uncover the falsity o f what afterwards was published. T h e n the efforts undertaken to ascertain the truth o f allegations w o u l d not prevent the publication o f defamatory statements, and, under Hill, l iability w i l l be imposed o n the publisher. T h e Court demanded o n the one hand that 'those who publish statements should assume a reasonable level o f responsibil i ty ' 2 5 indicating some k i n d o f negligence standard. O n the other hand, it ignored the possibility that a person m a y have acted reasonably and did not depart from the standard o f strict liability. 3. Suff ic iency o f the C o m m o n L a w Defences Another justification i n Hill for rejecting any modificat ion o f the c o m m o n law o f defamation was that it provides for defences in appropriate cases and thereby restores an adequate balance between the competing values o f reputation and freedom o f expression. T h e c o m m o n law defences have indeed been developed with a view to resolving tensions between the recognition o f freedom o f expression and the necessity o f protecting the individual 's reputation from injury. Yet , the court d id not take into consideration the l imited scope o f the defences. A communicat ion has to meet a number o f conditions in order to enjoy the protection offered by the defences and partly these conditions are connected with a great degree o f uncertainty. A c c o r d i n g to the defence o f justification a person is permitted to speak the truth about another regardless h o w damaging it m a y be. T h i s appears to be a strong affirmation o f the value o f 132 freedom o f expression. T h e reason for this defence is that a plaint i f fs reputation which is damaged b y the truth is not worthy o f protection by the law. H o w e v e r , some aspects reduce its significance. Foremost, falsity is presumed and truth must be proved b y the defendant on the balance o f probabilities. T h i s is problematic in so far as truth often is difficult to establish in view o f the rigorous evidentiary rules and standards o f p r o o f that apply in court proceedings . 2 6 Practical problems m a y arise. F o r instance, a witness m a y refuse to testify for fear o f negative consequences, or might lack credibility in the eyes o f the jury. Apart f rom this, no consideration is paid to the honesty or good intentions o f the person who communicated the statement. F inal ly , pleading truth is treated as a republication o f the defamation i n case the defendant fails to substantiate his c la im o f justification. T h e n he m a y face increased damages. Therefore, it does carry some risks to plead this defence . 2 7 Qual i f ied Privilege also places some obstacles in the way o f the defendant since a number o f requirements have to be fulfi l led. W h i l e the general principles o f this defence m a y appear to be broad it has been applied rather inflexibly in the past. T h e speaker has to discharge some legal, moral , or social duty, or pursue some private interest to communicate information to persons with a reciprocal duty or interest to hear that information. Necessary is a legitimate interest in giv ing information and a mutual interest in receiving it. T h e privilege is not extended easily but requires a compel l ing public pol icy reason to be permitted. H o w e v e r , there is no list o f discrete occasions to w h i c h the privilege attaches. 25 Hill v. Church of Scientology, supra n. 1, at p. 169. 2 6 Charles Tingley, "Reputation, Freedom of Expression and the Tort of Defamation in the United States and Canada: a Deceptive Polarity", (1999) 37 Alta.L.Rev. (3-4) 620, at p.625; Lewis Klar, "If you don't have anything good to say about someone...", published in David Schneiderman, Freedom of Expression and the Charter, (Carswell, Calgary, 1991), at p.266. 133 In the cases, a multitude o f diverse situations can be found w h i c h do not offer clear and predictable rules as to w h e n an occasion is regarded as privileged. A defendant can never be certain where the court w i l l choose to draw the line between relationships that enjoy qualified privilege and those that do not. A c c o r d i n g l y , a defendant often cannot k n o w beforehand whether a qualif ied privilege applies i n his case or not, m u c h less, what the scope o f his potential defence w i l l be. T h e latter is important since it is considered to be an excess o f privilege to publish information to an audience, a portion o f w h i c h has no legitimate interest in it. In that case, the privilege w i l l be lost even i f the original communicat ion was privileged with regard to a smaller group. T h e privilege w i l l also be lost i f information unrelated to the privi leged occasion is related, or it can be defeated b y malice. In this respect it is problematical that malice includes every improper purpose that is not connected to the purpose for w h i c h the privilege was given. T h i s means that malice is tested b y the publisher's attitude toward the person defamed. T h e emphasis is not on the question whether the publisher believed i n the truth or falsity o f his material but whether he was motivated b y any i l l purpose w h i c h makes the availability o f the defence even more difficult for the defendant. A t any rate, the defence o f qualified privilege is not available for the m e d i a w h e n an issue o f public interest is represented, i.e. the law refuses to acknowledge that the m e d i a have any special duty or interest in communicat ing information to the w o r l d at large. T h e mere fact that the subject matter is o f general concern is not sufficient to ground a defence o f qualified privilege. T h u s , the most important relationship in the context o f defamation, the one between media and public wi th regard to matters o f public interest, is excluded from the defence. 2 7 Philip Osborne, The Law of Torts, (Irwin Law, Toronto, 2000), at p.362. 134 Especial ly wi th respect to political debate it is hard to understand w h y the electorate should not have a legitimate interest i n the affairs o f government presented to them b y the media who are in the position to provide such information. T h i s contravenes the conception that democracy rests finally on the citizens and their consent and that the citizens must be free to discuss issues o f public importance i n order to be able to make intelligent dec is ions . 2 9 Fair comment also makes high demands o f the defendant. T h i s defence is said to reflect the law's recognition o f honest criticism as an aspect o f free speech and applies to matters o f public interest. In order to succeed, the defendant first must prove that the statement published was truly a comment or opinion and not one o f fact. T h e n , the statement must be based on a substratum o f facts, namely true facts, w h i c h were in existence at the time the statement was made, and it must concern a matter o f public interest. F inal ly , it must be seen as fair, w h i c h in this context means honest. So long as the representation is an honest assessment by the reviewer, it is protected, even i f it contains strong language and harsh criticism. If, however, the defendant acted with malice , for instance out o f personal vindictiveness or without honest belief in the truth o f the comment, the defence w i l l fail . Thus , one cannot necessarily express one's o w n genuine opinion. T h i s conception is very m u c h unlike the G e r m a n idea that statements o f opinion deserve presumptive protection and w i l l seldom be held to be o f secondary importance in comparison with reputation. T h e absence o f just one o f the elements o f fair comment has the consequence that the defence w i l l be rejected. In v iew o f this, pleading fair comment involves a considerable uncertainty as to the l ikel ihood o f being successful. T o begin with, the distinction between a statement o f fact and a statement o f comment o n fact is not an easy one to make. T h e uncertainty contained in the 2 8 Tingley, supra n.26, at p.625; Osborne, supra n.27, at p.364. 2 9 I will come back to this problem later on when discussing the proposal that the media should be conferred qualified privilege under the heading of'Proposals for Change'. 135 defence itself, as w e l l as the conservative attitude o f courts towards its use, provides a disincentive to publishing mater ia l . 3 0 Courts have even gone so far as holding a newspaper liable for a comment published i n a letter to the editor due do the lack o f honest bel ief in the allegations o n the part o f the newspaper, i.e. because the newspaper d i d not share the opinion o f the letter writer . 3 1 4. Rejection o f the A c t u a l M a l i c e R u l e In a next step the Court i n Hill referred to A m e r i c a n academic and judic ia l criticism o f the actual malice rule i n order to reject this standard and to justify its decision to maintain the existing regime. Arguments against New York Times were described extensively, without noting that the cited critics d id not contemplate a return to the state o f the c o m m o n law that existed prior to New York Times. Instead, they acknowledged that the 'old' c o m m o n law did not give adequate scope for freedom o f expression. 3 2 In order to warrant upholding strict liability, the Supreme Court also cited the H o u s e o f Lords decision i n Derbyshire County Council v. Times Newspapers Ltd?3 as w e l l as the Australian H i g h Court i n Theophanous v. Herald Weekly Times Ltd.34 B o t h cases were intended to serve as examples o f important courts in the c o m m o n law w o r l d refusing to adopt the actual malice approach. H o w e v e r , the Court chose to ignore the fact that the courts in these cases d id recognize the public interest in uninhibited public crit icism o f governmental bodies on the one hand, and the chi l l ing effect defamation law has on free speech o n the other hand. T h e 3 0 Klar, supra n.26, at p.267. 31 Chernesky v. Armadale Publishers Ltd. (1979), 90 D.L.R. (3rd) 321; see chapter two. 3 2 Tingley, supra n.26, at pp.629 and 647; Boivin, supra n.17, at p.257; Ross, supra n.21, at p.134. Indeed, the U.S. Supreme Court does under no circumstances impose liability without fault despite the controversy about the actual malice standard. The principle that some kind of fault is necessary was established in Gertz v. Robert Welsh Inc. (1974), 418 U.S. 323. 3 3 [1993] 1 All. E.R. 1011. 3 4 (1994), 124 A.L.R. 1. 136 Australian H i g h Court even m o v e d i n the direction o f the New York Times rule by adopting a standard similar to the actual malice rule but with some modifications - despite the absence o f an express constitutional protection o f freedom o f expression in Australia . Apart f rom that, it is not sufficient to s imply reject the solution adopted b y another country and use this rejection itself as an argument for one's o w n position. 5. C o n c l u s i o n Thus , the reasons given in the Hill judgement remain unidimensional , focussing exclusively on the accommodation found in New York Times as i f there was no other possible response to the tension between freedom o f expression and personal reputation than the actual malice rule. T h e Court s imply chose between this rule and the existing c o m m o n law, without taking into consideration the consequences o f strict liability i n a 'worst case' scenario where the defendant exercised reasonable care prior to publishing material w h i c h he believed to be true but which was later found to be false and defamatory . 3 5 A s a result, s.2(b) was denied the significance it should have at least with respect to expression central to its core purposes. T h e protection o f reputation was over-emphasized. That the judges formulated their conclusion rather carefully, referring to the 'application to the parties in this action' indicates that they themselves m a y not have felt quite comfortable with their decision and wanted to leave r o o m for further reconsideration o f the c o m m o n law o f defamation. T h i s w a y they acknowledged that issues still remain open. T h e current accommodation o f the interests in reputation and free speech therefore is subject to adjustment i f a compel l ing case for change can be made. A t the same time, however, the decision in Hill m i n i m i z e d the impact o f the Charter o n the judicial development o f defamation law and posed 137 barriers for future cases with respect to the c o m m o n law's reconciliation with freedom o f expression. B . T h e A p p l i c a t i o n o f the C h a r t e r to C o u r t O r d e r s a n d the C o m m o n L a w O n e crucial issue remains with regard to the decision in Hill: the fact that the Charter did not apply to the c o m m o n law o f defamation. T h e question o f the Charter's application is not specifically related to the tension between freedom o f expression and personal reputation but rather is a general problem concerning the Charter's impact. Nevertheless, this aspect is o f importance because the Court's refusal as to the Charter's application also supports m y conclusion that freedom o f expression is not valued enough b y Canadian courts in libel actions. T h e problem with respect to Charter application comprises o n the one hand the question w h y court orders and procedures are not regarded as o f 'governmental nature' in the context o f s.32(l) o f the Charter, and, on the other hand, w h y the c o m m o n law is not subject to Charter scrutiny in the same w a y statutes are. O n the basis o f s.32(l) o f the Charter it has been argued that the Charter is intended to apply only to disputes i n w h i c h government somehow is involved. In Dolphin Delivery M c l n t y r e J. actually determined to w h o m i n particular s.32(l) extends the reach o f the Charter. In his opinion, this section addressed the legislative, executive and administrative branches o f government, regardless o f whether or not their action is invoked in public or private l i t igat ion. 3 6 H e inferred this conclusion from a textual analysis o f the section i n question w h i c h seems to be 3 5 Boivin, supra n.17, at p.232. 3 6 [1986] 2 S.C.R. 573, at p.598. In this case the issue was whether an injunction granted under common law authority prohibiting secondary picketing infringed s.2(b). 138 rather artificial. A l l e g e d l y , s.32(l) treats Parliament and the Legislatures as separate or specific branches o f government, distinct f rom the executive branch o f government because it explicitly mentions the Parliament and government o f Canada and the legislatures and governments o f the Provinces. H e held that the w o r d 'government' i n this context does not refer to the government in its generic sense - as in the whole o f the governmental apparatus o f the state - but to a branch o f the government. Since the w o r d 'government' fol lowed the words 'Parliament' and 'Legislature' it was seen as referring to the executive or administrative branch, the sense in w h i c h one generally speaks o f the government . 3 7 It is, however, also possible to apply a different interpretation to s.32(l) b y reading it in the light o f s.52(l), w h i c h provides for the pr imacy o f the Constitution over any Canadian law. First o f all , the w o r d i n g in s.32(l) does not restrict the Charter's application to the legislatures and Parliament 'only'. In contrast to s . l , according to w h i c h the guarantees set out in the Charter are subject 'only' to such reasonable limits etc., s.32(l) does not use this confining term. T h e absence o f the w o r d 'only' therefore is significant and can be l inked to the historical context o f the change i n the constitutional system o f government brought about b y the Charter. Before the enactment o f the Constitution Act, 1982 one o f the prevailing features o f Canada's Constitution was parliamentary supremacy. But the Charter, contained in the new Constitution, was intended to constrain the supremacy o f Parliament. Therefore, it was necessary to make clear that in certain cases this supremacy no longer existed. S.32(l) and s.52(l) were included in order to make the Charter's application to government u n e q u i v o c a l . 3 8 Seen i n this light, s.32(l) does not 3 7 Ibid, atp.598. 3 8 Michael Doody, "Freedom of the Press, the Canadian Charter of Rights and Freedoms and a New Category of Qualified Privilege", (1983) Can. Bar Review 124, at p.137. Doody went even further and created an argument for the Charter's application to private litigation in general proceeding from this interpretation. He argues that private parties were and still are (during the post-Charter era) all subject to the general law. There was no need to specifically insert a section in the Constitution asserting that the benefits and obligations of the Charter apply to them because they simply need invoke some section of the general law and then invoke the enforcement section 139 support the textual justification for l imiting the scope o f the Charter's application found in Dolphin. A t any rate, it is a c o m m o n perception that courts and their processes form an integral part o f the government apparatus, and that court orders, as w e l l as state processes to enforce such orders, are forms o f government a c t i o n . 3 9 A s described in chapter four, court decisions are regarded as state action i n G e r m a n constitutional law, as acts o f public authority, fit to allow a constitutional complaint. T h e three branches o f government, namely the legislature, the executive and the judiciary, are explicit ly mentioned in article 1 o f the G e r m a n Bas ic L a w as being bound by the basic rights. T h e U n i t e d States also regard actions o f the judic ia l branch o f government as 'government' or 'state ac t ion ' . 4 0 T h e Supreme Court o f Canada itself has acknowledged that the judiciary is part o f government . 4 1 Yet , according to Dolphin Delivery government seems to be reduced to two branches, the legislative and executive. F o r the purpose o f Charter application actions o f the courts are not regarded as 'governmental action'. Courts seem to be something apart f rom government, although clearly not private actors. In fact, this result is discordant with the Charter's o w n content. T h e Charter contains several rights w h i c h the courts alone can implement (or deny) and w h i c h w o u l d not make sense i f they did not apply to the courts. T h e provisions in the category 'legal rights' particularly address the courts, such as s.7 and s . l 1(d) w h i c h protect the right o f a cr iminal accused to a fair trial or s . l 1(e) that protects the right to reasonable b a i l . 4 2 These rights are ultimately i n the competence o f and can only be provided (or denied) b y the courts. T o say that the actions o f the courts (s.24(l)) in an attempt to obtain a remedy. See also Darlene Madott, "Libel Law, Fiction, and the Charter", (1983) 21 Osgoode Hall L.J. 741, atpp.758-761. 3 9 Brian Etherington, "Notes of Cases", (1987) Canadian Bar Review 818, at p.834. 40 New York Times v. Sullivan, 376 U.S. 254, at p.264. 41 Fraser v. Public Service Commission, [1985] 2 S.C.R. 455. 140 cannot be subject to Charter scrutiny contradicts the text and content o f these provisions. Indeed, M c l n t y r e h i m s e l f stated i n Dolphin Delivery that 'courts are, o f course, bound by the Charter as they are b o u n d b y all law' and that it was their 'duty to apply the l a w ' . 4 3 Despite this realization, he rejected the idea that court orders are an element o f governmental intervention necessary to invoke the Charter. T h u s , courts are obviously not b o u n d in their role as adjudicators at c o m m o n law. However , subsequent cases partly undermined this holding b y characterizing the exercise o f c o m m o n law authority b y courts as public i n nature i f that exercise concerned criminal prosecution or took place i n an effort to protect the court's process . 4 4 W h e n judges decide issues relating to the c o m m o n law i n the context o f a cr iminal trial or o n bai l eligibility it is clear now that the Charter does a p p l y . 4 5 There the exercise o f c o m m o n law authority b y courts has been recognized as public i n nature. Sti l l , the holding i n Dolphin Delivery has not been abandoned and was reconfirmed in Hill. O n e explanation given in Dolphin Delivery for excluding actions o f the courts f rom Charter application was that courts act as neutral arbiters in applying the l a w . 4 6 T h i s reflects a long outdated premise o f legal formalism that judges are merely finders and declarers o f pre-existing c o m m o n law principles and rules 4 7 However , it does not take into consideration that courts are p o l i c y makers, particularly with respect to the c o m m o n law. 4 2 Lepofsky, supra n. 18, at p. 184. 43 Dolphin Delivery, supra n.36, at p.600. 4 4 In R. v. Swain, [1991] 1 S.C.R. 933 the Charter was applicable to the common law in criminal proceedings. Further examples for challenges to the common law in a criminal law context are R. v. Bernard, [1988] 2 S.C.R. 833 and Rahey v. The Queen, [1987] 1 S.C.R. 588. B.C.G.E.U. v. British Columbia, [1988] 2 S.C.R. 214 dealt with a judge's effort to protect the court's process. He issued an injunction on his own motion to prohibit picketing which might impede access to the courthouse. This injunction was subject to Charter scrutiny. 4 5 For instance in R. v. Swain, ibid (right to be tried within reasonable time); Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425. 46 Dolphin Delivery, supra n.36, at p.600. 141 T h e approach taken i n Dolphin Delivery suggests that courts actually are placed above the Charter in their role as judic ia l lawmakers under the c o m m o n law. Courts with non-elected and non-accountable judges can examine decisions o f Parliament and legislatures for infringements o f Charter rights. Restrictions on such rights w h i c h have been imposed b y democratically elected legislatures are subject to legal scrutiny while violations caused b y the courts through court orders and through the implementation o f c o m m o n law rules cannot be challenged. This opens the possibili ty for a person to use the power and processes o f the state to help h i m deny another person's Charter rights through court enforcement o f c o m m o n law r u l e s . 4 8 T h i s leads directly to the question w h y the judge-made c o m m o n law is i m m u n e from Charter attack i n the absence o f additional governmental action. T h e supremacy clause i n s.52(l) explicitly refers to 'any law' that is inconsistent with the provisions o f the Constitution and stipulates that such law is o f no force and effect. W h i l e the Court in Dolphin Delivery initially acknowledged that the c o m m o n law is 'any law' in this sense, declaring it 'wholly unrealistic and contrary to the clear language employed in s.52(l)' to exclude the b o d y o f c o m m o n law, it completely undermined this rul ing b y going on to hold that the Charter w i l l only apply to the c o m m o n law where a governmental actor is relying on it to infringe guaranteed r ights . 4 9 T h e c o m m o n law itself, or a court order based on the c o m m o n law, is not a sufficient connection to government for Charter purposes. In effect, an important source o f law, the great b o d y o f c o m m o n law, w i l l be immune from review for inconsistency with the Char ter . 5 0 It can develop inconsistently to the Charter with the result o f incompatibility with s.52(l). Brian Etherington, "Notes on Cases", Canadian Bar Review 1987, 818, at p.835. Lepofsky, supra n.18, at p.185; Etherington, ibid, at p.835. Dolphin Delivery, supra n.36, at pp.593 and 599. 142 T h e Court i n Hill based its conclusions with regard to the Charter's application to the law o f defamation o n this holding. It only tested whether the principles o f the c o m m o n law, in the particular case o f the law o f defamation, were inconsistent with Charter values. Thus , ordinary Charter scrutiny as it applies to statutes or other governmental action w h i c h allegedly infringe Charter rights, was not applicable. T h e differential treatment o f c o m m o n law and statute law, however, is not reasonable. M a n y statutes codify c o m m o n law causes o f action or rules, and once they take statutory form they are subject to Charter scrutiny. In Coates v. The Citizen51, for instance, the connection to government was made through the Defamation Act o f N o v a Scotia w h i c h allowed and regulated actions for defamation and contained provisions dealing with the issues o f damages, malice and falsity. T h r o u g h these provisions the Legislature authorized action w h i c h consequently had to c o m p l y with the Charter. T h e court held that although the Charter does not apply to private litigation, the fact that the A c t is a provincial statute provides the necessary connection to allow the application o f the Charter. T h u s , the same defamation law can be examined under the Charter i f it is enshrined i n legislation, but it w i l l be i m m u n i z e d from proper Charter review i f it is left to the c o m m o n law. In order to avoid Charter attacks, the legislature s imply has to leave the matter to the c o m m o n l a w . 5 2 T h e courts (or others who exercise legislatively granted discretion) create rules for the resolution o f competing private claims just as the legislature does and therefore should be treated alike. Private relations are as l ikely to be governed b y statute as by c o m m o n law and the desire for restricting Charter application to governmental rather than private action does not 5 0 Etherington, supra n.47, at p.832. 5 1 (1988), 85 N.S.R. (2nd) 146. 5 2 Lepofsky, supra n. 18, at pp. 184, 185. 143 justify the distinction between statute and c o m m o n law. T h i s point was w e l l understood in New York Times. Justice Brennan held that 'it matters not that that law has been applied in a c ivi l action and that it is c o m m o n law only, though supplemented b y statute. T h e test is not the form in w h i c h state power has been applied, but, whatever the form, whether such power has in fact 53 been exercised.' A s already argued above, courts do exercise state power, no matter whether they apply statutes or c o m m o n law rules. T h e Supreme Court's concern with respect to widening the scope o f Charter application to virtually all private litigation since all cases must end with an enforcement order is understandable, especially against the background that the extension o f the Charter's reach brings with it an expansion o f the power and influence o f courts. H o w e v e r , the question o f what constitutes governmental action is separate f rom the question o f whether and how the Charter should apply to private litigation where a court enforces a c o m m o n law rule. Certainly, the Charter should not apply in the sense that it provides a new cause o f action to resolve the private dispute since it exists to regulate the relations between government and private persons and not those between exclusively private persons. A s the G e r m a n approach shows, it is possible to review court decisions without using the Basic L a w as the foundation for resolving actual private disputes. T h e Constitutional Court in G e r m a n y is restricted to examining whether there is a violation o f 'specific constitutional law' while the resolution o f the actual dispute still ultimately depends o n the application o f the respective (private) law. T h e test is, whether the lower court sufficiently took into consideration the basic rights i n question in applying the rules o f private law. If the ordinary court failed in the task o f contemplating possible infringements, the Constitutional Court states that the decision 53 New York Times v. Sullivan, (1964), 376 U.S. 254, at p.265. 144 under challenge violates the Basic L a w and sends the case back to the ordinary court for a new decision. L i k e w i s e , the Charter should apply to court orders in Canada, even in purely private litigation, to preclude judic ia l enforcement o f Charter right violations, i.e. to prevent the possibility that a court order perpetuates the infringement o f fundamental rights caused b y a private entity through not acknowledging it. T h e starting point still is, that the injured party m a y have a remedy under statutory or c o m m o n law regulating private relations in case some action o f a private entity resulted in a restraint on one o f the injured party's c i v i l liberties. There w i l l not be a remedy under the Charter to resolve this p r o b l e m . 5 4 T h e Supreme Court then can scrutinize the statute or c o m m o n law in question in order to test its consistency with the Charter. T h e application o f s. 1 w i l l not create complications with respect to the c o m m o n law since limitations imposed b y c o m m o n law are prescribed b y law as wel l . F o r Hill this w o u l d have meant that the court had to go through the usual s.2(b) analysis in determining whether the c o m m o n law o f defamation violated the defendant's right to freedom o f expression, i.e. it had to see whether the expression at issue was covered b y the constitutional guarantee, whether there was a limitation o f freedom o f expression and whether this limitation was a reasonable l imit , prescribed b y law, that can be demonstrably justified in a free and democratic society under s . l o f the Charter. In accordance with Irwin Toy and Zundel the Court w o u l d have had to acknowledge that injurious (and possibly defamatory) statements do benefit from the protection provided by s.2(b). That the law o f defamation restricts free speech b y imposing liability on certain communications and thereby is a violation o f this right cannot be doubted. F inal ly , the court 145 w o u l d have had to justify this limitation under s. 1. Instead o f applying a very flexible, rather arbitrary and superficial test to determine whether defamation law is consistent with Charter values, as done in Hill, the Court w o u l d have been forced to define the c o m m o n law's objective, and to see whether it pursued a pressing and substantial purpose, and whether it met the requirements o f the proportionality test. A t this last stage the effects o f the law o f defamation on freedom o f expression w o u l d have had to be considered and balanced against the law's underlying purpose. If the purpose o f defamation law is defined as protecting personal reputation against injury, the measure adopted, namely the punishment and thus deterrence o f defamatory speech, arguably is rationally connected to the law's objective. B u t it is doubtful whether the tort o f defamation could have been regarded as impairing freedom o f expression no more than is necessary to accomplish its objective. In m y opinion, the law o f defamation w o u l d not have survived the m i n i m u m impairment test. However , I w i l l expand upon this aspect in the remaining part in this chapter. H a d the Supreme Court o f Canada decided the case on the basis o f the Oakes test that applies to statutory l a w , 5 5 it might w e l l have come to a different conclusion i n Hill as to whether the c o m m o n law o f defamation needs some adjustment in order to c o m p l y with the Charter. A t least the decision's focus w o u l d not have been exclusively on the w i s d o m o f the actual malice standard. See Etherington, supra n.47, at p.832. 146 C . C r i t i c a l L o o k at the L a w o f D e f a m a t i o n So far, the Supreme Court's decision in Hill, the decisive decision with respect to the relationship between defamation and the Charter, has been criticized. N o w it is time to cast some light o n the c o m m o n law o f defamation itself, and to review it more generally in terms o f its consistency with s.2(b) o f the Charter. Tradit ionally , defamation law has tended to favour the protection o f reputation, and as shown above the impact o f the Charter o n this c o m m o n law has been m i n i m i z e d b y the Supreme Court in Hill. However , the current law o f defamation as described in chapter two contains several aspects w h i c h give rise to the convict ion that it has not achieved an appropriate balance between the opposing interests o f free speech and reputation. In m y opinion it exhibits no concern at all for balancing these values. It has been mentioned before that the plaintiff has to establish three things in order to have a prima facie cause o f action. H e has to show that the material he complains o f is defamatory, that it refers to the plaintiff and that it has been published to a third person. If the plaintiff succeeds in demonstrating these elements, the falsity o f the defamatory statement w i l l be presumed as wel l as damages and malice on the part o f the defendant. T h e defendant has the possibility o f pleading certain defences provided b y the c o m m o n law, such as justification, privilege or fair comment. In this connection he bears the burden o f provi ng the respective requirements. T h e fol lowing examination o f the ingredients m a k i n g out a defamation action w i l l confirm the conclusion that the existing regime does not sufficiently take s.2(b) o f the Charter into 5 5 The elements of the Oakes test have been indicated in the paragraph above. For a more detailed description see chapter three. 147 consideration. I. Defamatory Nature o f the Material First o f all , the plaintiff must prove that the words he complains o f defame his reputation. Material is not only then regarded as defamatory when it causes serious harm to a person's reputation but also w h e n it w o u l d cause the plaintiff to lose any respect or esteem in the eyes o f others. T h e threshold to begin an action is relatively low, especially considering the circumstance that the court is not really concerned with whether the material actually d id lower the plaint i f fs reputation amongst those who were aware o f it. Instead, a hypothetical test o f whether the words are reasonably capable o f a defamatory meaning is applied. Thus , the plaintiff does not have to prove that the words complained o f are in fact defamatory but only that a reasonable and right-thinking person w o u l d understand them as defamatory. Generally , courts w i l l consider almost all critical material as defamatory . 5 6 In Hanly v. Pisces 57 • Productions , for instance, an honest letter responding to a request for reasons explaining w h y the defendant d id not hire the plaintiff was considered to be defamatory with regard to its contents saying that the person in question lacked self-confidence, failed to provide positive work references and that there had been unsatisfactory work experiences. A s a result o f this broad approach the field o f application for the law o f defamation is immensely extended. T h i s approach harbours the potential o f punishing a great number o f communications w h i c h indeed deserve protection b y awarding damages and thereby restricting free speech too extensively. In v iew o f the defence o f justification it has been explained that defamation law protects the plaint iffs legitimate reputation and i f this reputation can be damaged by the truth it is to that 148 extent unworthy o f protection b y the law. In Watkin v. Hall the principle was established that 'the law w i l l not permit a m a n to recover damages in respect o f an injury to a character w h i c h he either does not, or ought not, possess.' Yet , it does not even matter whether the plaintiffs reputation was i n fact affected b y the publication. A n action for defamation m a y even be successful i f the persons made aware o f the allegations d id not understand them i n a defamatory sense, d i d not believe the imputations, or already had a low estimation o f the plaintiff. H o w can a reputation be damaged i f the audience o f the publication d id not sense any defamation? Clear ly , the fact that material nevertheless m a y be considered defamatory cannot be reconciled with the principle that the law o f defamation protects the 'deserved' reputation o f the individual f rom 'injury'. Another p r o b l e m is that the defendant not only has to take responsibility for the natural and ordinary meaning o f his words (as opposed to the meaning he intended to convey and was aware o f conveying) but also for defamatory inferences reasonably drawn from those words even i f he was ignorant o f the extrinsic facts w h i c h made his apparently innocent communication defamatory. It is almost impossible for the defendant to estimate and to assess what the jury at trial w i l l consider as defamatory since he cannot take into account each and every eventuality. II. Presumption o f Falsi ty W i t h regard to m a k i n g out a prima facie cause o f action the truth or falsity o f the communicat ion is o f no relevance. If the material is found to be defamatory, its falsity w i l l be presumed. Therefore, the plaintiff does not have to prove that the defamatory words were false. H e is prima facie entitled to a good reputation even i f he does not deserve it. T h i s again 5 6 Klar, supra n.26, at p.263. 5 7 [1981] 1 W.W .R. 369 (B.C.S.C.). 5 8 (1868), L.R. 3 Q.B. 396, atp.400. 149 contradicts the principle that the law only protects a reputation w h i c h the plaintiff indeed enjoys. T h e c o m m o n law requires the defendant to warrant the accuracy o f his material and makes him bear the risk o f not being able to conclusively prove the truth o f his allegations i n court with the result that the plaintiff m a y be protected undeservedly. Consider ing that the law's objective is to secure an individual 's good reputation, w h i c h requires that such a reputation and integrity in fact exists, falsity o f the material should have to be proved as a precondition for recovering damages. T h e presumption o f falsity shows that the law o f defamation ignores that a defamatory opinion might be valuable. A s M i l l argued, the suppressed idea m a y possibly be true or m a y contain a portion o f truth and truth is more l ikely to be found i f people are exposed to various assertions. T o presume that an o p i n i o n is false just because it is defamatory counteracts the purpose o f free expression to discover truth and also ignores the checking function o f free speech with regard to abuse o f authority. III. Presumption o f D a m a g e In the same w a y as it is presumed that the plaintiff enjoys a good reputation, it is presumed that damage to this reputation has occurred without taking the actual effect into account. There is no need to show that the plaintiff has in fact suffered actual monetary or other loss because the existence o f injury is presumed from the mere fact o f publication. Admit tedly , it is impractical and difficult to measure the actual injurious effects o f a communicat ion o n a person's reputation. However , this does not justify s imply proceeding on the assumption that there must be some damage in the ordinary course o f things. First o f all, before assessing damages the courts should be strongly assured that the statement is indeed false. Falsi ty is the precondition that injury to the reputation can have occurred at all. In spite o f 150 this, falsity w i l l not be explicitly affirmed since it also is presumed. T h e presumption o f injury is particularly hard on the defendant since it cannot be rebutted. A s said before it does not affect the f inding o f a statement being defamatory i f no one believed the communicat ion. Consequently, it does not help the defendant to establish that the publication was indeed not believed. E v e n i f he could show that no damage whatsoever arose from his publication this w i l l not defeat the a c t i o n . 5 9 T h e plaintiff can nevertheless recover large damages. Yet , the c o m m o n law o f defamation does not in all cases presume damages. It distinguishes between l ibel and slander, the latter being even subdivided into slander and slander per se. O n l y in the categories o f l ibel and slander per se defamation is actionable without special proof o f damages. In order to recover for slander itself damage w i l l not be presumed but has to be pleaded and demonstrated. N o w a d a y s , cases o f slander where proof o f damages is required are relatively rare. In the early days o f the c o m m o n law, however, slander constituted the most important part o f defamation actions since writ ing was not widespread in view o f the general illiteracy o f the population. A c c o r d i n g l y , at that time it usually was necessary to prove specific loss as a consequence o f the communicat ion. T o d a y , the focus is o n libel actions with the result that i n the majority o f cases no actual loss has to be shown. T h u s , with the development from predominantly oral to mainly written communications the basic principle shifted from the requirement to prove damages to the presumption o f damages. 151 I V . Presumption o f M a l i c e It has already been indicated that fault is generally immaterial to liability in defamation law, with the exception o f the publication issue: words can be found defamatory regardless o f the defendant's intention to make a statement at all , m u c h less a defamatory one. H e w i l l be liable even i f he was not aware o f the defamatory meaning his statement conveyed or i f he took reasonable care to ensure it was not defamatory. In fact, the defendant has to take the consequences o f all the inferences that can be reasonably drawn from his communication. L ikewise , his intentions with regard to identification are o f no relevance, i.e. the fact that he meant to refer to someone else or was not aware o f the plaint i f fs existence w i l l not help h i m . Liabi l i ty depends solely o n the act o f publishing. T h e defendant has to be somehow responsible for the publication o f the defamatory material. However , it is not even necessary that the defendant intended to publish the defamatory material since his intention with respect to publication w i l l be inferred from the fact that the material actually was published. A s soon as defamatory material is published the defendant is deemed to have intended the consequences o f his voluntary action. If he in fact was not responsible for the publication, for instance in a case o f accidental publication, it is up to h i m to prove this. C o r y J. held i n Hill that, defamation is the 'intentional publication o f an injurious false statement.' 6 0 H e continued to say that while an actual intention to defame is not necessary to impose liability o n a defendant, the intention to do so is nevertheless inferred from the publication o f the defamatory statement. T h e n , he concluded that this gives rise to the presumption o f malice w h i c h m a y be displaced by the existence o f a qualif ied privilege. 5 9 Robert Post, "The Social Foundations of Defamation Law: Reputation and the Constitution", (1986) 74 Cal.L.Rev.691,atp.699. 60 Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129, at p.178. 152 T h i s v iew obscures the fact that the aspect o f publication and that o f the defamatory nature o f the material are two distinct issues. Fault should be required for both issues independently without confusing them. Apart f rom that, to say that the intention to defame is inferred from the publication implies that fault in this sense can only be understood in terms o f intention and not in terms o f lack o f reasonable care. 6 1 F o r instance, the general delict provision o f the G e r m a n C i v i l C o d e , § 823 B G B , requires fault (or animus) concerning every aspect o f the actus reus, namely with regard to the activity which violated one o f the enumerated rights and to causing damage through that activity. Fault in this connection comprises intent and negligence, i.e. it leaves r o o m for the concept o f reasonable care taken prior to the activity. T h i s example suggests that the law o f defamation, especially as interpreted b y C o r y J. , should be revisited with regard to its strict liability. A further p r o b l e m is that the presumption o f non-accidental publication and o f malice, i.e. the inference drawn from publication, is not a mere evidentiary presumption the defendant can rebut (unless it can be shown that there was a privileged occasion) but has the strength o f a ' f i n d i n g ' . 6 2 O n c e more, the c o m m o n law o f defamation favours the plaintiff and the protection o f his reputation at the expense o f the defendant's right to free speech. V . C o m m o n L a w Defences T h e value o f the defences o f justification, privilege and fair comment provided by the c o m m o n law o f defamation has, in view o f the numerous limitations and uncertainty o f their applicability, already been discussed above with the conclusion that they do not supply 6 1 Richard Dearden, "Constitutional Protection for Defamatory Words Published about the Conduct of Public Officials", in David Schneiderman, Freedom of Expression and the Charter, (Thomson Professional Publishing Company, Calgary, 1991), atp.258. 153 sufficient means to protect freedom o f expression. Despite their function o f restoring an appropriate balance between the tort law's interest in the protection o f the reputation and the conflict ing constitutional commitment to free speech, they fail to do so. V I . C h i l l i n g Effect o f the C o m m o n L a w o f Defamation T h e law o f defamation places a heavy burden o n the defendant. H e must anticipate the meanings that the jur y might attribute to his statement, including inferences and innuendo, and make sure that their truth can be proved in order to escape liability, or he has to meet the numerous requirements o f one o f the defences. In effect, the current l ibel law operates so as to create a reverse onus on a l ibel defendant. 6 3 W h i l e s. 1 o f the Charter places the burden o f p r o o f on the party who claims that a limit upon a fundamental right is justified, the law o f defamation, w h i c h itself limits freedom o f expression, requires the defendant, whose right to free speech has been restricted, to show that the limitation was not justified. B o i v i n summarized the status quo o f defamation law by saying that 'someone who voluntarily expresses h i m s e l f must accept the risk o f all reasonable defamatory inferences, whether the risk is excessive or not in the circumstances. T h e risk must be supported whether or not the cost o f preventing the injurious falsehood outweighs the probability and gravity o f the potential injury to reputation.' H e concluded that the defendant m a y be liable even i f complete silence is the only way harm could have been a v o i d e d . 6 4 Dearden, supra n.61, at p.293. 6 3 Thomas Gibbons, "Defamation Reconsidered", (1996) 16 Oxford J. Leg. Studies 587, at p.609; Dearden, supra n.6, atp.293. 154 In v iew o f this, it is c laimed that writers w i l l rather censor themselves than risk the consequences o f litigation. T h i s is particularly so where the media are concerned. T h e y may refuse to publ ish defamatory material referring to public figures o n a matter o f public interest since they cannot anticipate the outcome o f such a publication. Stories m a y not be published because they are regarded as not being worth the risk o f defending a libel action with the possibility o f large damage awards and high legal costs. U n d e r the current law, it seems, the media can only publish and broadcast news it can prove to be true, w h i c h m a y lead to suppression o f coverage o f important public issues. T h e sphere o f protected discussion w i l l be reduced to that w h i c h is comfortable and compatible with current conceptions and w h i c h is not critical o f sensitive issues. T h i s is c o m m o n l y referred to as the 'chil l ing effect' o f libel laws. That such a libel chi l l exists was recognized in New York Times where Brennan J. explained that under the existing rule 'would-be critics o f official conduct m a y be deterred f rom voic ing their criticism, even though it is believed to be true and even though it is in fact true, because o f doubt whether it can be proved in court or fear o f the expense o f having to do so . ' 6 5 A s a result, the law limits the variety o f public debate. Similar ly , the H o u s e o f L o r d s acknowledged the chi l l ing effect o f defamation law in Derbyshire CC v. Times Newspapers. L o r d K e i t h observed that 'the threat o f a c i v i l action for defamation must inevitably have an inhibiting effect on freedom o f speech. ' 6 6 F ina l ly , the Australian H i g h Court fo l lowed this v iew in Theophanous v. Herald Weekly Times Ltd. and found that the 'decisions w h i c h establish the c o m m o n law principles have not been concerned to assess the inhibiting impact o f the law o f defamation and threats o f action for defamation on the exercise Boivin, supra n. 17, at p.264. New York Times v. Sullivan (1964), 376 U.S. 254, atp.279. [1993] 1 All.E.R. 101. 155 o f the i m p l i e d freedom o f communication. ' T h e c o m m o n law itself refers to the chi l l ing effect with respect to the defence o f absolute privilege. T h i s defence exists in order to prevent Parliamentarians (among others) from being inhibited from expressing their views o n matters o f c o m m o n interest by granting them absolute immunity from liability. T h i s is said to support a frank and vigorous debate i n the democratic institutions o f government and, consequently, to secure the efficient functioning o f those institutions. O n the same grounds, members o f the public or the press should have the right to fearlessly speak about the conduct o f the very same public officials. Certainly, this ' l ibel chi l l ' has the most severe effect where political expression, w h i c h lies at the core o f freedom o f expression, is concerned. I have already referred to the value even defamatory speech has with respect to the checking function o f expression for holding officials accountable b y publ ic ly scrutinizing their conduct, or with respect to polit ical opposition. T h e threat o f l ibel actions with their consequences can restrict the expression o f critical and dissenting views m u c h to the delight o f politicians who have a strong interest in suppressing criticism o f them i n order to stay in power. Apart from this, the individual 's capacity to form his o w n views and opinions, and to discuss these with others without censorship is essential for self-fulfilment. T h e right to freely express one's opinion also must comprise the right to state this o p i n i o n i f it is defamatory. F o r the sake o f promoting the process o f intellectual self-development, society, to a certain degree, has to put up with communications o f thoughts and beliefs w h i c h m a y be too harsh. It is dehumanizing to tell a person that he cannot communicate his beliefs, the expression o f w h i c h is closely tied to his personality. O f course, this right to free expression cannot be absolute but must in certain circumstances 6 7 (1994), 124 A.L.R. 1, at p. 19. 156 give w a y to countervailing considerations. Personal reputation is a value that deserves protection as wel l . H o w e v e r , equil ibrium between the competing interests has to be found which did not happen in the case o f the law o f defamation. VII . C o n c l u s i o n Casting a critical light o n the current law o f defamation revealed that this b o d y o f c o m m o n law principles does not reflect a true compromise between the competing interests o f reputation and freedom o f expression but protects the first i n a disproportional w a y at the expense o f the latter. T h e low threshold requirement to open a l ibel action and the presumptions o f falsity, damages and malice work against the libel defendant, placing obstacles in his way and m a k i n g it difficult for h i m to defeat an action. Canadian courts obviously value reputation over free speech by supporting strict liability without attaching importance to the Charter's impact. That the c o m m o n law o f defamation does not achieve a correct balance between the competing interests is not surprising considering its historical context and development. It has not been designed to fulf i l the demands o f contemporary society. T h e law's development was only urged on b y the invention o f the printing press, w h i c h was perceived as a serious threat to the public order and the C r o w n . C h u r c h and State were motivated b y their desire to suppress and control political and religious discussion. T h e jurisdiction over defamation was assumed by the Star Chamber , an institution w h i c h exercised unlimited authority, i n order to eradicate duelling and preserve peace. Against this background, it is clear w h y the law o f defamation is not concerned with balancing reputation and free speech: its initial purpose i n fact was to suppress speech and it was administered b y a very powerful institution w h i c h wanted to maintain its authority by assuming control over the press. T h e libel concept was used by tyrants to silence potentially influential 157 critics. C o r y J. referred to defamation law's history, concluding that the character o f this law is 'essentially the product o f its historical development up to the 17 t h century, subject to a few refinements such as the introduction and recognition o f the defences o f privilege and fair comment. ' H e further noted that although 'the law o f defamation no longer serves as a bulwark against the duel and b l o o d feud, the protection o f reputation remains o f vital importance. ' 6 8 Surprisingly, this history was not taken as evidence that the law m a y be old-fashioned and requires some re-assessment and modificat ion i n order to c o m p l y with today's needs. O n the contrary, the Court took this history as proof o f the fundamental importance o f the interest in reputation. 6 9 In sum, had the Supreme Court in Hill applied the Charter to the c o m m o n law o f defamation as suggested above (instead o f considering Charter values only) , and had it, as a consequence, dealt with the regular s.2(b) analysis, it is doubtful whether the current law o f defamation w o u l d have survived the justification test under s . l o f the Charter. D . P r o p o s a l s for C h a n g e T h e importance o f freedom o f expression, as demonstrated i n chapter one, in combination with the described failure o f the c o m m o n law o f defamation to give adequate weight to this fundamental right (as shown earlier in this chapter) provide compel l ing reasons for m o d i f y i n g 68 Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. 129, at p.162. 6 9 Noteworthy is that the majority of the Supreme Court came to a different conclusion in R. v. Zundel, [1992] 2 S.C.R. 731, after tracing back the provision of the Criminal Code. The goal of the law at the time was found out to be the prevention of statements about powerful landowners which might provoke them to use the force of arms. 158 defamation law. It needs to be adjusted to the changes and new constitutional demands brought with the enactment o f the Charter. E v e n i f the principles o f the c o m m o n law o f defamation were only to be measured against the values underlying the Charter, as it has been decided in Hill, those values are still sufficient reasons to reform the c o m m o n law rule that governs defamation despite the f inding i n Hill that this rule complies with them. Unquestionably, the individual 's good reputation has to be treated as a serious and significant value but not as a value that so pervasively dominates others, as it presently does. A t the same time, freedom o f expression is not an absolute right and should not prevail in all circumstances. However , one o f the values necessarily w i l l be favoured over the other to some degree. H o w the c o m m o n law o f defamation should be formulated, and w h i c h precise balance it should establish depends o n the relative importance a society wishes to attach to the respective competing values. Canadian courts show a preference for the interest in personal reputation. A n explanation for this might be that the absence o f an entrenched B i l l o f Rights in the Canadian Constitution for m u c h o f its history had a formative influence on judic ia l attitudes in this area. C a n a d a also has never been confronted with a war and extensive speech suppression such as, for instance, G e r m a n y under the N a z i regime. It has lacked the pressing social context w h i c h might have prompted a greater regard for free expression. C o m i n g from another background, from a tradition where free speech is i n effect valued more highly than individual reputation interests, I have a different perspective with regard to the tension between the competing values at stake. In m y opinion, free expression should receive m u c h stronger protection than it does under the current c o m m o n law o f defamation. Because of these origins the Court rejected any substantial governmental objective of the current law. (Ross, supra 159 I demonstrated in chapter one that freedom o f expression in general is extremely important and therefore should not be restricted carelessly. It has repeatedly been affirmed that the content o f a statement cannot deprive it o f the protection o f s.2(b). Addi t ional ly , one has to keep in m i n d that it is difficult to determine when speech has redeeming value. These aspects already indicate that defamatory expression deserves constitutional protection. Admit tedly , the rationales explained in that chapter are not all unrestrictedly applicable to defamatory speech. However , the premise that defamatory speech cannot have value or is unrelated to the values underlying s.2(b) is not justified. T h e free speech rationales do support this type o f expression as it has been pointed out occasionally within this thesis . 7 0 T h e limitation o f free speech through libel laws touches, for instance, on the value o f the vigorous and open debate that is essential to democratic government and inevitable with respect to political opposition. If citizens truly are to be al lowed to discuss and debate issues with regard to political activities and the conduct o f public officials in order to ensure that their consent to government is as informed as possible (as the democracy rationale suggests), this must mean that they can state their actual opinion even i f this w i l l result in defamatory allegations. Apart from this, the restriction o f defamatory speech undermines the function o f free expression as a check o n abuse o f authority. T h e accusation o f misconduct w i l l almost necessarily be accompanied b y defamatory imputations. In order to guarantee public scrutiny o f official conduct, defamatory speech in this connection must be accepted. T h e exclusion o f such speech invalidates the argument that freedom o f expression has a checking function. Another aspect is that o f social stability enhanced b y free expression. G i v i n g a person who disagrees with polit ical decisions or activities the possibility to vent his dissatisfaction through n.21, atp.133). 160 speech (which m a y include the communicat ion o f injurious statements), as opposed to suppressing his cri t icism, can help to achieve social stability. T h e restriction o f defamatory speech m a y also impair the search for truth since defamation law does not confine itself to false and defamatory communications but also covers injurious expression that m a y be true, namely, w h e n the defendant was not able to prove the truth o f his allegations in view o f the strict evidentiary rules and standards o f p r o o f that apply in court proceedings. F inal ly , it can have negative effects with regard to individual self-fulfilment to restrict social interaction that is important i n order to allow the individual to see h i m s e l f as sovereign in m a k i n g decisions and forming opinions. A l l people must be given the possibility to openly communicate their beliefs and display their opinions even i f they are injurious to others. There is something dehumanizing about telling a person that he cannot communicate his beliefs and to exclude h i m f rom the possibility o f speaking. It denies the respect for inherent dignity o f a h u m a n person. O n l y free expression can promote the accommodation o f a wide variety o f beliefs. M c L a c h l i n stated in R. v. Keegstra11 that ' i f the guarantee o f free expression is to be meaningful, it must protect expression w h i c h challenges even the very basic conceptions about our society.' Nevertheless, the c o m m o n law o f defamation imposes extensive limitations on freedom o f expression and the Charter's impact has even been m i n i m i z e d b y the Supreme Court in Hill. It almost seems as i f defamation law is accepted as a val id restriction o f free speech since it preceded the Charter. I have argued that the Charter should apply directly to the c o m m o n law in general and the c o m m o n law o f defamation i n particular, and in the course o f this discussion, I have indicated Particularly on pp. 129-130 and 156 of this chapter. 161 that defamation law might in all probability not have survived the m i n i m u m impairment stage set out i n Oakes as part o f the s . l analysis. T h i s test requires that the adopted restricting means should impair the right or freedom i n question no more than necessary to accomplish its objective. In other words, the c o m m o n law o f defamation has to be formulated i n a way that its objective o f protecting personal reputation is pursued b y the least drastic means with regard to freedom o f expression. 7 2 H o w e v e r , a critical look at the c o m m o n law o f defamation earlier in this chapter revealed its one-sidedness, particularly i n view o f its presumptions. I have shown that the c o m m o n law o f defamation does not take freedom o f expression sufficiently into account, that it over-emphasizes the significance o f personal reputation, and that it needs reassessment. In m y opinion, the existing defamation law restricts freedom o f expression to an intolerable degree and does certainly not represent the least drastic means available i n the sense o f the m i n i m u m impairment test, no matter h o w strictly or relaxed such a test m a y be framed. T h e only possibili ty to achieve an appropriate equil ibrium between the protection o f reputation and freedom o f expression, in m y view, seems to be to fundamentally change the c o m m o n law o f defamation i n order to bring it into accord with the Charter. T h e elements o f the traditional l ibel action, the c o m m o n law presumptions, and the distribution o f burdens all need to be adjusted in order to c o m p l y with the constitutional guarantee o f free speech. Defamat ion law has been the object o f several inquiries in the past and various suggestions already have been made in order to improve its consistency with the constitutional value o f free 7 1 [1990] 3 S .C.R. 697. 7 2 In chapter three it has been mentioned that subsequent cases adopted a more relaxed standard than Oakes did, rephrasing the minimum impairment test, for instance, into 'impaired as little as reasonably possible' or 'least intrusive in the light both of the legislative objective and the infringed right'. At any rate, caution is necessary in order not to overvaluate legislature's objective and not to undervaluate the expression at issue. 162 speech. In the f o l l o w i n g I w i l l first introduce and criticize the two proposals o f granting absolute immunity to polit ical speech and o f according a qualified privilege to the media. Further proposals, such as the actual malice rule or the defence o f due diligence, w i l l be discussed in connection with m y o w n idea o f h o w the c o m m o n law o f defamation should be modif ied . This method allows me to draw comparisons and demonstrate differences between the varying approaches more easily. I. Absolute Immunity for all Poli t ical Discuss ion First o f all , there was the rather radical minority position in terms o f protecting freedom o f expression o f D o u g l a s J. and B l a c k J. in New York Times, w h i c h was also favoured by D e a n J. i n Theophanous. These judges argued that defamation actions should be precluded completely in cases o f publications that deal with official conduct or the suitability o f a M e m b e r o f Parliament. T h e y wanted to go considerably further i n the application o f the free speech guarantee b y conferring on the m e d i a an unconditional right to say what they please about public officials. A c c o r d i n g to them it cannot be justified in the public interest to render citizens liable i n damages for m a k i n g statements about public officials and their conduct. T h e mere possibility o f defamation actions has an unacceptable chi l l ing effect upon political criticism. T h i s approach indeed goes very far in protecting freedom o f expression; it also ignores the individual 's right to be protected from injury to his reputation. It does not take into account that the m e d i a not o n l y provide important polit ical information but also are engaged in the entertainment business, where the publication o f sensational scandals often proves to be decidedly economical ly valuable. A n untrue publication m a y ruin a person's career and life. Therefore, it is not advisable to choose such an extreme method, withdrawing all protection from one o f the competing values at stake. 163 In addition, it is w e l l established i n Canada that no right or freedom is absolute. T h e way in w h i c h s ! o f the Charter is framed arguably does not allow an interpretation departing from this rule. Therefore, the solution o f granting freedom o f expression absolute priority and o f placing it above all other interests is inconsistent with the Canadian Charter. II. Q u a l i f i e d Privilege for the C o m m u n i c a t i o n M e d i a Another proposal is the recognition o f a new qualified privilege for the m e d i a based on the Charter itself i n cases where the conduct o f public officials is i n v o l v e d . 7 3 So far the courts have not acknowledged that the media have a duty to provide information even where the public has a legitimate interest in receiving such information, i.e. no privileged occasion has been accorded to m e d i a publications. E v e n i f a privileged occasion had (or w o u l d have) been found, it was exceeded since such a broad publication was regarded as one 'to the w o r l d at large', made to an audience w h i c h partly had no legitimate interest. It is w e l l established that the courts have not considered the categories o f qualified privilege to be closed. T h e circumstances w h i c h give rise to a privileged occasion 'can never be catalogued and rendered exact' . 7 4 Indeed, the defence has to be reviewed from time to time since the continually changing conditions i n society m a y render it necessary to create new privileged occasions. T h e adoption o f a new Constitution in Canada, including the Charter of Rights and Freedoms, represents a radical change in public p o l i c y that should have some impact on the existing c o m m o n law. Therefore, it is appropriate to re-assess existing defences o f qualified privilege. T h e Supreme Court itself has held that the law o f defamation must be developed and applied in 164 a w a y consistent with Charter dictates, w h i c h might make modifications to the c o m m o n law necessary. Advocates o f this proposal stress the vital role the press plays in a democratic society concerning the discussion o f public affairs. In a system o f representative democracy legislatures derive their polit ical legitimacy f rom their representative character. In order to ensure that the M e m b e r s o f Parliament indeed represent the wishes o f the electorate it is vital that the voters have the opportunity to receive and analyse political information. F o r this reason, it is argued, the dissemination o f political information has to be afforded extensive protection. T h e courts have been aware o f the fact that there is reliance by the public o n the news media as their agent and representative in public matters. T h e press performs the important function o f gathering information for, and disseminating it to, the public . It has once been explained that 'no individual can obtain for h imsel f the information needed for the intelligent discharge o f his political responsibilities. . . T h e press acts as an agent o f the public at large. It is the means by w h i c h the public w i l l see that free f low o f information and ideas is essential to intelligent self-government.' Moreover , the press serves as a very important check on governmental misconduct. Against this background, the role o f the press has been given constitutional status in s.2(b) o f the Charter. In v i e w o f the significance o f the media the courts should reconsider their position with regard to a qualif ied privilege; especially since the c o m m o n law is based upon principles that can be considered discordant with the values enshrined in s.2(b) o f the Charter. 7 3 This view is advocated by Dearden, supra n.61, at pp.308-316. See also Doody, supra n.38, at p.149. 74 London Association for Protection of Trade v. Greenlands, [1916] 2 A.C. 15, at p.22 (H.L.). 75 Saxbe v. Washington Post Co. (1974), 417 U.S. 843, atp.863. (Powell J.). 165 T h e suggestion is to acknowledge that the media have a c o m m o n or mutual interest in disseminating information i n w h i c h the public has a legitimate and mutual interest, such as polit ical speech and the proper organisation and functioning o f government. It is argued that s.2(b) o f the Charter can and should be used to create a new category o f qualified privilege with respect to defamatory allegations published about public officials or their conduct. Thus , the media should be granted qualified privilege in publishing political information to the public . T h e creation o f such a qualified privilege certainly acknowledges the important role o f the press and takes a step i n the right direction (i.e. constitutionalization o f the c o m m o n law o f defamation). H o w e v e r , it does not eliminate the partiality and one-sidedness expressed by the law o f defamation i n favour o f reputation that I have demonstrated earlier in this chapter. It only represents a partial possibili ty o f improvement with respect to a better recognition o f the right to freedom o f expression i n one particular context but is, in m y opinion, not sufficient. T h e issues w h i c h have been examined a b o v e 7 6 do not only arise in connection with media defendants although this indeed is one o f the most significant fields affected b y the restrictions o f defamation law. Therefore, changes should not stop at this point. I suggest going further in protecting free speech. III. Extension o f the Element o f Fault First o f all , the law o f defamation should be governed b y the fault principle. B o i v i n has made a convincing argument for the necessity o f g iv ing fault a more significant role in order to support his proposal o f a defence o f due diligence w h i c h I w i l l introduce in a moment. 7 6 Here I refer to the one-sidedness of the common law of defamation and its preference of the protection of reputation, created by its presumptions of falsity, malice and damages, as well as to the insufficiency of the defences provided by the defamation law, all of which I have demonstrated earlier in this chapter. 166 H e pointed out that other areas o f tort law w h i c h are governed b y strict liability (for instance, the law pertaining to dangerous animals or the law o f nuisance) usually have an economic justification based o n the fair distribution o f risk. Strict liability in these cases can be traced back to p o l i c y reasons such as, for example, the need for providing accident victims with reliable sources o f compensation. However , while it might be appropriate to impose liability irrespective o f fault in settings where dangerous activities are involved , the same standard is not suited in the libel context since the competing interests in that field are not purely economic. O n the contrary, it is the constitutional interest o f freedom o f expression that is o n the other side o f the scale . 7 7 Hill was a rare case in so far as it dealt with a malicious lie, where the defendant had knowledge o f the falsity o f his allegations and nevertheless repeated them during the trial. M o r e often, however, the falsity o f a defamatory statement w i l l only be determined i n court, fol lowing detailed discovery during trial. T h e really problematic cases are those where the defendant had published his allegations, w h i c h have been found to be false and defamatory, after a bona fide investigation that somehow failed to uncover their falsity. T h e n the defendant was not aware o f the falsity o f his material and took reasonable care to prevent his statements being false. In such cases the defence o f justification is not applicable. Despite his best efforts, the defendant w i l l be liable according to the present regime o f defamation law unless he published the material on a privileged occasion. Attempting to ascertain the truth o f his communicat ion prior to publication did not help h i m . In this scenario, the c o m m o n law's unwillingness to tolerate the risk o f error is an extreme position. In order to avoid deterrence o f truthful expression some constitutional breathing room 7 7 Boivin, supra n.17, at pp.265-269. 167 has to be given. It is hardly compatible with Charter values to penalize forms o f expression regardless o f fault. Therefore, a defendant should not be liable i f he can show that he exercised reasonable care i n ver i fying the accuracy o f his allegations. 7 8 It has been shown earlier in this chapter that the presumption o f fault or malice , w h i c h infers the defendant's intention to defame another person from the sole act o f publication even i f the defendant lacked actual intention to publish the material at all , is harmful to free expression and cannot be maintained. T h e greatest part o f Canadian tort law is governed by the fault principle (with rare exceptions that I have already referred to), as is the G e r m a n 'law o f del ic t ' . 7 9 F o r the above reasons, I consider it necessary that the defendant be liable only i f he acted with fault. 1. Defence o f D u e D i l i g e n c e B o i v i n suggests that a defence o f due diligence be r e c o g n i z e d . 8 0 H i s proposal is to allow that the presumption o f fault can be rebutted b y proving that due diligence was exercised prior to the publication to ascertain the truth or falsity o f the material. A c c o r d i n g to this solution the plaintiff w o u l d still be entitled to a prima facie f inding o f liability i f he can prove the elements o f an action for defamation: the defamatory nature o f the allegations, identification and publication. T h e n it is up to the defendant to demonstrate that reasonable care was taken to prevent the disclosure o f defamatory and false material. N o evidentiary burden w o u l d be added to the plaintiff. T h e defence o f due diligence also is preferable to creating a new category o f qualified privilege that requires the plaintiff to prove malice o n the part o f the defendant i n order to recover damages. In a privi leged occasion, the defendant can escape liability for publishing false 7 8 See also: Boivin, ibid, at pp.242-244, 270-271. 7 9 See p.l52cin this chapter. 168 statements without efforts o f ascertaining their truth, or i f the plaintiff is unable to prove malice. Another advantage is the broad applicability o f the defence o f due diligence. It applies whether the plaintiff is a publ ic or private figure, whether the defendant is a member o f the media or does not benefit f rom the guaranteed freedom o f the press, and independently o f the publication's subject matter (in contrast to the actual malice rule adopted b y the U . S . Supreme Court.) Boivin ' s approach is similar to the one adopted in Theophanous where the Court also, in effect, granted a defence o f due diligence to the publisher o f statements critical o f public officials by al lowing the defendant to prove that he d id not k n o w the defamatory statement was false and was not reckless as to whether it was false or true. In addition he had to show that the publication was reasonable i n the circumstances in order to escape liability. Since the right to free communicat ion i n Austral ia covers only polit ical expression in the first place, B o i v i n ' s defence o f due diligence, w h i c h is applicable i n every libel action, is broader. It also does not contain the aspect o f recklessness o n the part o f the defendant and that o f a reasonable publication. However , both conceptions have in c o m m o n that they demand that the defendant show he had taken reasonable care i n checking the accuracy o f the impugned material in order to escape liability. Nevertheless, neither the defence o f due diligence nor the defence granted b y the Australian H i g h Court eliminates the injustices to the libel defendant contained in the current law o f defamation. F o r instance, the significant issue o f the presumption o f fault, w h i c h has been criticized above, continues to exist. In view o f the emphasis given to the principle o f fault, it is, in m y opinion, not sufficient to fashion it i n the form o f a defence, where the defendant bears Boivin made a case for adopting the defence of due diligence in his article "Accommodating Freedom of 169 the burden o f pr oving his lack o f fault, contrary to the basic rules laid d o w n in s ! o f the Charter. 2. A c t u a l M a l i c e R u l e T h e decision in New York Times adopted a different approach in order to give fault a more significant role i n the c o m m o n law o f defamation. T h e majority o f the Court not only established a qualified privilege for the media, affording protection to criticism o f official conduct, but also adopted a rule w h i c h prohibits a public official f rom recovering damages for a defamatory falsehood relating to his off icial conduct unless he proves that the statement was made with actual malice . T h e p r o o f o f actual malice demands significantly more than traditional c o m m o n law understanding o f malice. It has to be shown that the defendant acted with knowledge that his allegation was false or with reckless disregard as to whether it was false or not . 8 1 T h i s standard is not satisfied b y providing evidence that the defendant was motivated b y personal spite, i l l w i l l or intention to injure, but it requires the plaintiff to show that the defendant i n fact entertained serious doubts as to the accuracy o f his publication. A s a result, the plaintiff has to prove the falsity o f the published material i n addition to its defamatory nature - the presumption o f falsity is abolished - and he has to show actual malice on the part o f the defendant. It was accepted that this test w o u l d result in the publication o f some false political information. However , this consequence was regarded as a lesser constitutional evil than press censorship w o u l d be, caused b y the fear o f l ibel actions and damages. T h e actual malice rule has been m u c h criticized. T h e Court in Hill extensively surveyed the criticism o f it, mostly made b y A m e r i c a n commentators, and reviewed the impact o f the Expression and Reputation in the Common Law of Defamation", supra n.17 (particularly pp.280-286). 170 standard developed b y the U . S . Supreme Court . Especial ly reproved was the circumstance that the decision was very m u c h influenced b y the dramatic and compel l ing facts underlying the Sullivan case. T h e communicat ion complained o f was highly polit ical since it criticized the conduct o f government officials in southern states for al lowing segregation to continue. T h e Court's decision was concerned with the ability o f the press to effectively cover the development o f the desegregationist c i v i l rights movement in these states and with the prevention o f a chi l l ing effect on the conduct o f the media's responsibility to watch the government. It has been argued that in order to remedy an extraordinary, isolated case a rule was introduced w h i c h created unintended and distressing effects . 8 2 Furthermore, the Court in Hill referred to the opinion that the new standard has put great pressure o n the fact-finding process and significantly complicated it since courts were now required to make subjective determinations as to who is a public figure and what is a matter o f public concern. (Indeed, the experience i n the U . S . concerning the public figure concept is noteworthy. Initially, the rule applied to public officials only. T h e n it was expanded to public figures, a broad category including famous non-off ic ial p la in t i f f s . 8 4 T h e court even went so far as to extend the category to all private plaintiffs as long as they were involved in events o f public or general concern or interest. 8 5 T h e question whether the plaintiff is a public figure increasingly d i v i d e d the court and left confusion in its w a k e . 8 6 ) Another point o f crit icism was that New York Times allegedly shifted the focus o f defamation suits away f rom their original purpose o f ascertaining the truth o f the impugned statement to the 81 New York Times v. Sullivan 376 U.S. 254, atpara.51. 8 2 Tingley, supra n.26, at pp.640, 641. 83 Hill v. Church of Scientology (1995), 126 D.L.R. (4th) 129, at p.166. 84 Curtis Publishing Company v. Butts (1967), 388 U.S. 130. 85 Rosenbloom v. Metromedia (1971), 403 U.S. 29. 8 6 In order to complete the development it should be added that in Philadelphia Newspapers Inc v. Hepps (1986) 475 U.S. 767 it was held that a private plaintiff not only must prove fault and actual damage (which had been established in Gertz before) but also falsity. 171 determination whether the defendant acted with fault. A l t h o u g h it is not necessarily true that defamation law primari ly is concerned with ascertaining the truth, the emphasis in cases under the U . S . rule admittedly is on the proof o f actual malice and thereby fault. T h i s shift allegedly brings about several detrimental effects. F o r instance, the p r o o f o f malice on the part o f a m e d i a defendant involves often extensive inquiry into m e d i a procedures. T h e plaintiff w i l l have to explore the editorial process, investigate the notes and sources o f the journalist and f ind out b y w h i c h manner the latter prepares his story in order to prove that the defendant had knowledge. Since the defendant's state o f m i n d has to be examined, there s imply is more to litigate w h i c h , i n turn, increases the length o f the trial and the cost o f litigation. Contrary to the purpose o f the actual malice test, the rising costs o f litigation and the frequency o f actions in the post-Sullivan era were said to contribute to m e d i a self-censorship, with the result that the very evil the actual malice standard was supposed to eliminate has been 87 aggravated. In sum, it has been said that the actual malice rule gives insufficient weight to reputation and affords inadequate protection to it because it places a heavy onus o f p r o o f on the public official who is basically left without a r e m e d y . 8 8 W h i l e it is acknowledged that robust and unfair criticism is part o f the price o f going into public life, the person concerned should not be deprived o f his right to reputation. However , the decision i n New York Times was a judic ia l endorsement o f the views o f Alexander Tingley, supra n.26, at pp.636-638. 8 8 In Theophanous v. Herald Weekly Times Ltd. (1994) 124 A.L.R. 1, at p.21 the Court held that the test tilts the balance unduly in favour of free speech against the protection of individual reputation. See also Boivin, supra n.17, at p.240. 172 M e i k l e j o h n , an A m e r i c a n political philosopher, whose argument was that because the citizens in a representative democracy have to be able to exercise informed consent, political communicat ion must be treated in a m u c h more protective way. That is what the U . S . did in New York Times: they gave more weight to freedom o f political speech. Apart f rom that, the criticism brought forward against New York Times is at least in part unconvincing. T h e decision admittedly was based o n compel l ing facts. Nevertheless, it cannot be said that the previous c o m m o n law rule was satisfying and was carelessly discharged in order to resolve a single case. E v e n the critics o f this decision do not advocate a return to the o ld regime o f defamation law. T h e argument that the U . S . decision shifted the focus o f defamation suits away from ascertaining the truth o f the allegations to the determination whether the defendant acted with fault also does not support the maintenance o f the existing defamation law. T h e issue o f truth technically o n l y arises in defamation litigation where the defendant pleads the defence o f justification. Otherwise a statement, once regarded defamatory, is legally assumed to be false as the case proceeds. T h u s , the law o f defamation has never been primari ly concerned with revealing the truth o f the published material. I cannot see that it is wrong to focus on the defendant's fault. Indeed, to raise the issue o f fault is exactly what I suggest. N o person should be liable for any damage caused b y h i m unless he acted with some k i n d o f fault and, thus, actually is responsible in a legal sense for what he did . Nevertheless, the U . S . actual malice rule has its disadvantages, such as the limited applicability and the complications with regard to determining who is a public figure and what is a matter o f 8 9 Ian Loveland, "Reforming Libel Law: The Public Law Dimension", International and Comparative Law 173 public importance. T o require the plaintiff to prove actual malice also goes quite far at the expense o f the protection o f his personal reputation. However , m y proposal w i l l avoid these issues. 3. Negligence Standard C o m b i n i n g ideas f rom both o f these latter two proposals (defence o f due diligence and actual malice rule), I suggest that strict liability be discarded b y a negligence standard in all cases o f defamation, independent o f the status o f the plaintiff or the defendant, and irrespective o f the publication's subject matter, where the plaintiff has to prove fault, i.e. intention or negligence, on the part o f the defendant. A distinction between public off icial plaintiffs and private plaintiffs, or between media and non-media defendants, w o u l d only lead to additional complications. T h e guarantee o f free expression in s.2(b) is accorded to the public generally, and the status o f the persons concerned should in principle not make a difference for the purpose o f balancing freedom o f expression and personal reputation. It can, however, be taken into account in the course o f the determination whether the defendant acted negligently, i.e. w h e n measuring the defendant's conduct against what a reasonable person w o u l d have done under comparable circumstances. In cases concerning the crit icism o f a public off icial more leeway should be given to the publisher i f the information deals with a matter o f public interest. Apart f rom this, the basic rule needs to be the same for every plaintiff and defendant. F inal ly , it has been demonstrated that all expressive content is worthy o f protection, not only such content that deals with matters o f public importance. Therefore, the scope o f s.2(b) with regard to defamation actions should not be reduced to the protection o f publications concerning Quarterly, ser.4, vol.4, 1997, 561, at p.572. See also chapter one for Meiklejohn. 174 public affairs. W i t h the defence o f due diligence this proposal has in c o m m o n universal applicability. However , while B o i v i n offers a defence that can rebut the presumption o f fault, I argue that this presumption has to be abolished all together. C o m p a r e d to New York Times m y solution is broader i n so far as it applies to all cases o f defamation without differentiating between public off ic ial plaintiffs and private persons. Thus , the reproach o f putting pressure on the fact-finding process, w h i c h has been raised against the decision i n New York Times, is eliminated. A t the same time, the negligence standard requires less o f the plaintiff with regard to proving fault on the part o f the defendant. T h e actual malice rule made it necessary to prove the defendant's knowledge o f the falsity o f his allegations, or that he acted with reckless disregard as to whether they were true or not (with recklessness being a very h i g h degree o f negligence). Negligence, on the other hand, focuses o n the question whether the publisher knew or should have k n o w n that his defamatory statement was false, whether he acted without reasonable care i n ascertaining the truth o f his imputations, or whether he failed to use ordinary care to determine the truth or falsity o f his allegation. T h e defendant's conduct w i l l be measured against what a reasonable person w o u l d have done under the same or similar circumstances. S u c h a standard, w h i c h lightens the burden o f the plaintiff f rom having to prove recklessness to having to prove negligence, gives more weight to personal reputation than the actual malice rule does. W i t h respect to the onus o f proof, s ! o f the Charter requires that the party who wants to maintain a limitation o f a guaranteed right or freedom justify this restriction. In libel actions the plaintiff relies on the c o m m o n law o f defamation w h i c h restricts the defendant's right to free expression. Therefore, according to the w a y s ! places the onus o f proof, the plaintiff has to 175 prove that the defendant acted intentionally or negligently. T h e defendant w i l l be liable only i f the plaintiff can show that the defendant acted unreasonably in publishing the defamatory statement, i.e. that he failed to exercise that degree o f care that a reasonable, prudent person w o u l d have exercised under comparable circumstances to protect persons f rom a defamatory falsehood. I V . Presumption o f Falsi ty C l o s e l y l inked to the problem o f presumed fault is the presumption o f falsity. It has been explained before that only a good reputation w h i c h is in fact enjoyed by the plaintiff w i l l be protected b y the c o m m o n law o f defamation. Another premise is that such a personal reputation, w h i c h the plaintiff does deserve, can only be injured b y false defamatory statements. F o r this reason, the defence o f justification was introduced, g iv ing the defendant the possibility o f showing the truth o f his allegations. T h e basic principle is that a reputation w h i c h can be damaged b y the truth does not deserve protection b y the law. N o w , i f truth is valued too m u c h to attach a penalty to its publication, falsity o f the complained-of material must be a precondition for the success o f a l ibel action. Apart from that, it is, i n m y opinion, generally a greater evil to penalize true expression, whose protection is in the interest o f the public , than to refuse a plaintiff the right to recover damages for injury to his reputation due to the failure o f proving falsity. B e i n g such an essential element, falsity cannot s imply be presumed; it needs to be proven. T h e onus o f doing so should be o n the plaintiff as the one who wants to justify a limitation o f free expression, again fo l lowing the basic rule in s ! o f the Charter. A n d o f course, fault on the part o f the defendant has to cover the element o f falsity, i.e. it is necessary that the defendant acted at least negligently with regard to the falsity o f his allegations. 176 V . Presumption o f D a m a g e O n the same grounds, the presumption o f damage needs to be abolished. If the objective o f defamation law is to compensate a person for the damage his g o o d reputation suffered from the publication o f injurious allegations, it is elementary that some k i n d o f damage must actually have resulted f rom the defamation. In G e r m a n y § 253 o f the C i v i l C o d e , w h i c h determines that in the absence o f pecuniary loss compensation for an injury m a y only be awarded in the cases specified by law, reminds the court to be very careful i n awarding damages . 9 0 In the field o f defamation it is particularly complicated to assess damages because o f the difficulty o f assessing monetary compensation for injuries such as personal humiliation, insult or indignity, to name a few. In effect, the concept o f presumed damage invites courts (especially juries) to punish unpopular opinion rather than to compensate individuals for injury suffered b y the publication o f defamatory statements. This danger has to be redressed. Af ter all , i n the early years o f defamation law, when slander constituted the predominant part o f defamation actions, it was necessary to prove actual loss in order to recover damages. T h e same basic rule should still apply today where, as a result o f social development and change, l ibel actions prevail over slander actions. Therefore, the plaint i ff should only be able to recover damages i f he can prove that he indeed sustained damage. V I . C o n c l u s i o n In effect, m y proposal resembles the approach adopted i n parts o f the U n i t e d States fol lowing New York Times. T h e U . S . Supreme Court had held in Gertz v. Robert Welch Inc. that the states were free to define for themselves the appropriate standard o f liability for the publication o f 177 defamatory falsehoods, so long as they do not impose liability without fault . 9 1 M a n y states made use o f this permission by introducing a negligence standard, where damage was no longer presumed, eventually abolishing the c o m m o n law presumptions. H o w e v e r , for the most part the distinction between public figures and private plaintiffs has been retained. A s I have explained before, I reject such a differentiation and instead argue for equal treatment o f all defamation actions. A c c o r d i n g to m y proposal, the plaintiff not only has to establish that the words complained o f are defamatory, identified the plaintiff and were published to a third person. H e also has to prove the falsity o f the allegations at issue and that he in fact sustained injury. F i n a l l y , the plaintiff has to prove fault on the part o f the defendant with regard to the publication o f false and defamatory material. After what has been demonstrated and explained in the course o f this chapter, fault on the part o f the defendant has to comprise every single element o f the cause o f action, not only the act o f publication. T h u s , the defendant had to be aware o f the fact that he communicated a false, defamatory statement identifying the plaintiff and he had to act at least without reasonable care as to whether his allegations were true or false. 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