Defamation and Media Regulation

Regulation of New Media: Defamation

Shift in Course Focus

  • From governmental regulation of new media to a micro-level focus on everyday lived experiences.
  • Emphasis on how daily experiences are regulated, particularly through defamation laws.

Defamation Overview

  • Defamation: harming someone's reputation through communication.
  • Two types of defamation under common law:
    • Slander: Ephemeral communication (e.g., gestures, spoken words).
    • Libel: Defamatory meaning in a durable form (e.g., written word).
  • Course focus: Libel, particularly its publication in new media.

Libel and New Media

  • Real-world consequences for publishing defamatory content on social media platforms.
  • The Hill v. Church of Scientology case as an introduction to defamation and its legal framework.
  • Key concept: Reputation and its harm due to defamatory publications.
  • Defamation involves lowering someone's standing in the eyes of a reasonable person, leading to damages.

Hill v. Scientology: Big Picture

  • Case provides an understanding of defamation's structure rather than specific legal procedures.
  • Objective: Understand the specifics of defamation and its implications for new media.
  • Focus on how the emergence of the Internet and social media poses challenges for regulating communications.
  • Concept of reputation: A fundamental consideration in philosophical and conceptual contexts.

Reputation and Human Dignity

  • A person's reputation is innately tied to their human dignity.

Freedom of Expression vs. Reputation

  • Freedom of expression, guaranteed under the Canadian Charter of Rights and Freedoms (section 2(b)), can conflict with the right to the integrity of one's reputation.
  • Defamation proceedings aim to strike a balance between these two Charter values.

Charter Values

  • Charter: Refers to the Canadian Charter of Rights and Freedoms.

Charter Application

  • The Charter only applies to governmental action. It ensures rights and freedoms, such as freedom of the press (crucial for a democratic society) and protection against unreasonable search or seizure (relevant to new media, like cell phones).
  • Does not apply to private litigants or private law (torts).

Torts and Defamation

  • Tort law: Area of law that captures defamation.
  • Common law of defamation: A tort where a party claims harm due to another private party's actions (e.g., publishing on social media).
  • Examples of torts: Trespass or negligence.

Applying Charter in Defamation Cases

  • Charter of Rights and Freedoms does not apply in private litigation.
  • Section 32 of the Charter: only applies to governmental action.
  • Challenging a law under the Criminal Code as an infringement of freedom of expression is an example of invoking the Charter.
  • The Charter cannot be invoked in a defamation case, as it is private litigation.

Hill v. Scientology: The Appeal

  • Appellants: Morris Manning and the Church of Scientology of Toronto, appealing a judgment.
  • Morris Manning: Lawyer representing the Church of Scientology.
  • Two constitutional arguments by the appellants:
    • The primary argument for this course: The common law of defamation is inconsistent with the Charter of Rights and Freedoms.
    • The secondary argument is about jury awards.

Appellants' Argument

  • Central argument: Common law of defamation is inconsistent with the Charter of Rights and Freedoms.
  • Historically, courts have been unfairly biased towards protecting reputation over freedom of expression.
  • Remedy sought: Modification of the common law of defamation to align it with the Charter.

How to Modify Defamation Law

  • Appellants want the Supreme Court of Canada to adopt the "actual malice" standard of liability, which was from the United States Supreme Court case New York Times v. Sullivan.
  • New York Times v. Sullivan: A landmark case modifying defamation law in the U.S. amidst social unrest.
  • Common law: Judge-made law evolving through court decisions.

Common Law of Defamation vs. Statutory Law

  • Common law of defamation: Jurisprudence from court cases involving private parties.
  • Statutory law of defamation: Criminal libel under the Criminal Code of Canada (governmental action).

Supreme Court's Decision

  • The Supreme Court of Canada rejects the "actual malice" standard.
  • The Court concludes that the common law of defamation is consistent with Charter values.
  • Charter values: Reputation and freedom of expression.
  • The Charter does not apply directly, but its values are integral to defamation law.

Defenses in Defamation Cases

  • Defenses available to a defendant even if the published words are defamatory.
  • Hill v. Scientology introduces two defenses:
    • Qualified privilege
    • Justification (truth).

Key Questions and Timeline in Hill v. Scientology

  • Two fundamental constitutional questions:
    1. Consistency of common law of defamation with the Charter.
    2. Challenge to jury awards (not focused on in this course).
  • Casey Hill: Crown prosecutor suing the Church of Scientology and Morris Manning for defamation.
  • Important to understand the timeline of events leading to the lawsuit:
    • Criminal contempt proceeding commenced by the Church of Scientology against Casey Hill.
    • Allegations that Casey Hill authorized the unsealing of documents without a court order.

Press Conference and Qualified Privilege

  • A timeline involving a contempt proceeding:
    • The church making the motion for a criminal proceeding against the Crown Attorney.
      The press conference is crucial because, in it, the Church's Council and Representatives holding a press conference on courthouse steps, read from and commented on allegations in the contempt motion.
    • That is, Morris Manning, the legal counsel for the Church of Scientology, is literally reading from the formally submitted motion. Thus, this event is a so-called "occasion."
    • There's a question as to whether the occasion will allow him qualified privilege as a defense.
    • Later, a judge will show the motion document, which contained allegations made by Scientology against Casey Hill regarding violations of a court order, to be untrue.
    • Thus, because those claims were untrue, it can be used as reasoning and evidence for defamation, which is what Casey Hill did.
  • The trigger point is in the press conference and the statements, which were reading from unproven allegations, that he would not have made except for their defamatory nature.

Governmental Action

  • Whether Casey Hill's action for damages is governmental action is important to determine because remember that under the common law of defamation, it's private litigation. Thus, if Casey Hill's action could be interpreted as governmental action, then the following becomes important: "was he an agent acting on behalf of the government of Ontario, the Attorney General of Ontario, to go after Scientology and Morris Manning with that defamation action."
  • Section 32 sub one helps illustrate the application of the charter for cases.

Core Considerations in this case

  • Thus, there's a questions to whether The key questions in Hill v. Scientology are:
    1. Whether the common law of defamation complies with values underlying the Charter.
    2. Whether the actual malice rule should be adopted.

Defenses Continued: Justification and Privilege

  • Defense of justification or truth in comparison to qualified privilege. Important considerations for each.
    • Under the common law:
      • There'd be some way to qualify the statement in an occasion in a press conference or something like it.
      • That a person could not do in a common and private context. (The so-called "justification" for what was done and claimed under qualified privilege. A legal defense).
    • Two Defenses were in the proceeding:
      • Qualified Privilege
      • Justification, also known as the defense of truth.
        • It goes away rather quickly because in it, there was a document which contained all this stuff regarding violations of a court order, which turned out to be untrue.

Details on the Application of Qualified Privilege

  • When considering this topic of qualified privilege, realize that. Qualified privilege applies to an occasion, not to the meaning which might or not or might not be spoken at that occasion.
  • The defense is available on the grounds that I had a requirement and the receiving party was required to hear it. They have a duty rather than "They're obliged."
  • The definition of what is a privilege or something that allows you to do something that is otherwise not available is really important.

Definition of Privilege

  • Think in terms of privilege. It allows an individual to do something others can't. Think in terms of qualified. It qualifies as a more simple definition. One will consider the various aspects of all proceedings in the proceeding.
  • When it's been found that the words are, in fact, not good and wrong to say, then the defendant has the opportunity.