Defamation and Freedom of Expression Lecture Notes

The common law of defamation seeks to regulate interactions and communication by providing recourse for harms to reputation.
Understanding defamation is important for analyzing new media and how communication is regulated.

Focus on libel (published defamation).
Understand the nature of reputation.
Explore the philosophical and legal underpinnings of freedom of expression (Section 2(b) of the Charter).
Explore freedom of expression beyond a legal perspective, considering its philosophical significance.

Charter values underlie the Charter, which include freedom of expression and reputation.
The Charter doesn't directly apply to private litigation but Charter values are still important.

Libel cases highlight the clash between reputation and freedom of expression.
The common law of defamation seeks a reasonable balance between these values.
The key question is whether the common law strikes an appropriate balance between these two values.
Manning and the Church of Scientology argue the common law of defamation favors reputation over freedom of expression.
Manning and Scientology want the Supreme Court to adopt the actual malice rule.

Freedom of expression is essential for criticizing institutions and government.
Freedom of expression, like all Charter rights, is not absolute and is subject to reasonable limits prescribed by law.
The state can limit freedom of expression through legislation if the limit is reasonable and demonstrably justified in a free and democratic society.
An individual can challenge legislation infringing on their freedom of expression.

Freedom of expression has underlying values.
The Supreme Court of Canada, in the Keigstra case, identified three values:
- The quest for truth.
- The promotion of individual self-development.
- Participation in the community.
These values give structure to the concept of freedom of expression.
Individuals challenging legislation must prove their activity satisfies one of these values.

Defamatory statements are tenuously related to the core values of Section 2(b).
They are inimical to the search for truth.
Defamatory statements do not enhance self-development or lead to healthy participation in the community; they are detrimental and harmful to a democratic society.

The Charter value of reputation is explored.
Essential to understand and think about the treatment of these twin values of reputation and freedom of expression individually, but also together to see how they apply to the Supreme court rulings.

The arguments advanced by Manning in Scientology were rejected.
The Supreme Court of Canada dismissed the appeal and rejected the adoption of the actual malice rule.
The Supreme Court stated that the common law of defamation in Canada is consistent with charter values and recognizes and respects the values of freedom of expression.

The actual malice standard of liability places the liability on the plaintiff.
It's a standard that has to be met by the plaintiff.
The actual malice standard of liability places an additional burden on the plaintiff.

In the U.S., the plaintiff, particularly if a government official, bears the burden of proving the defamatory words referred to the plaintiff, were published, and harmed their reputation.
The plaintiff must prove the defendant was motivated by actual malice or was reckless in publishing falsehoods.

The New York Times v. Sullivan case took place during social upheaval in the United States.
The U.S. Supreme Court ruled that the existing common law of defamation violated the guarantee of free speech.
The court held that the citizens' right to criticize government officials is of such importance in a democratic society that it can only be accommodated through the tolerance of speech which may eventually be determined to contain falsehoods.
Recognizing that a public official has to accept falsehoods in light of vigorous public debate and criticism.

The solution adopted was to place the onus or the burden on the plaintiff.
Supreme Court wanted to, with the actual malice standard liability, make the burden higher to those who want to sue for defamation.
Actual malice standard liability places an extra burden on a public official. The burden is to demonstrate that the party in publishing falsehoods was motivated by actual malice in doing so.
There's is reasons that show why burden is too high and the implications of the actual malice standard liability.
Canada's Supreme Court wants nothing to do with the actual malice rule.

The common law of defamation is supposed to provide an option for individuals who feel their reputation has been harmed at the hands of another.
The actual malice rule takes that opportunity away from public officials.
In a regular case, without the actual malice rule, the person that is suing, the plaintiff, does not have to prove that the defendant was motivated by actual malice or that they were reckless.

Defenses that can be used are qualified privilege, justification (truth), and fair comment.

As you develop expertise, broaden your understanding of the elements of the common law of defamation and how it functions.
Develop a base of knowledge that prepares you for a wide range of challenges.

In its application of the action of Hill vs church of Scientology and More Manning, that the common law defamation complies with the underlying values of the charter, and there is no need to amend or alter it.

Manning is arguing that the defense of qualified privilege should be expanded to comply with charter values.
Qualified privilege attaches to the occasion upon which the communication is made and not to the communication itself.
- The example given is parliamentary privilege; members of parliament can make statements that they are not privileged to repeat outside of the house.
A privileged occasion is an occasion in which a person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.
Citizen journalism brings interesting scenarios to the discussion of qualified privilege.