This paper was presented at the Association for Education in Journalism
and Mass Communication in Toronto, Canada, August 2004.
If you have questions about this paper, please contact the author
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PROTECTING THE HIGH AND MIGHTY:
LIBEL LAW IN CANADA
By ROBERT L. SPELLMAN*
*The author is an attorney and associate professor of journalism at
Southern Illinois University-Carbondale.
This paper was prepared for possible presentation to the Law Division,
Association for Education in Journalism and Mass Communication, Toronto,
Ontario, Canada, Aug. 4-7, 2004.
Robert L. Spellman (618)
536-3361
Associate Professor FAX
(618) 453-5200
School of
Journalism [log in to unmask]
Southern Illinois University-Carbondale
Carbondale, IL 62901
Canada is a parliamentary democracy that shares many values with the United
States. It has an independent judiciary with the Supreme Court of Canada at
its apex. That judiciary is the guardian of the fundamental liberties of
the Canadian people as enshrined in its Charter of Rights and Freedoms.
Despite a charter guarantee of press freedom,[1] one value that the
Canadian judiciary does not share with the United States is "a profound
national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public
officials."[2] Nor does the Canadian judiciary agree with the notion that
"erroneous statement is inevitable in free debate, and that it must be
protected if the freedoms of expression are to have the 'breathing space'
that they 'need . . . to survive.'"[3] Rather the Supreme Court of Canada
believes that uninhibited political speech that tolerates erroneous
statements "would tend to deter sensitive and honourable men from seeking
positions of trust and responsibility, and leave them open to others who
have no respect for their reputation."[4] It has chosen to retain the harsh
strict liability regime of the common law of libel with its deference
toward society's elites and its well-documented chilling effect on the news
media.[5]
This paper analyzes the Canadian Supreme Court's decision in Hill v. Church
of Scientology in which it rebuffed an opportunity to liberalize its libel
law. It contrasts Hill with the benchmark decision of the United States
Supreme Court in New York Times v. Sullivan in which the Court ruled the
restrictions the common law of libel placed on political speech violated
the First Amendment. It relates how provincial courts in the wake of
Reynolds v. Times Newspapers Ltd.,[6] decided by the House of Lords of the
United Kingdom four years after Hill, have recognized a public interest
qualified privilege which may liberalize strict liability for public
affairs reporting. It notes that Hill is at odds with the liberalization of
libel law in India,[7] South Africa,[8] Australia[9] and New Zealand.[10]
The paper discusses the anomaly of the high court of one of the world's
most democratic countries rejecting a core value of its rights charter in
favor of the reputation of public personages, a value not mentioned in the
charter. Finally it discusses and rejects the Canadian court's criticism of
Sullivan and concludes the situation that spawned Hill is precisely the
type of government conduct Sullivan was designed to overcome.[11]
THE CANADIAN POLITICAL SYSTEM
Canada is a federal republic with a Westminster-type parliament. The leader
of the majority in parliament is ordinarily the prime minister. The nation
has 10 provinces (and three territories) with their own legislatures. The
provinces have extensive powers, particularly as to civil and property
rights, but federal law prevails when there is a conflict and the federal
law is within federal constitutional authority. Unlike the United States,
where powers not granted to the national government remain with the states,
residual powers in Canada reside in the federal government. Other than the
power to overturn legislation in conflict with the Charter of Rights and
Freedoms,[12] the judiciary is subordinate to parliament and provincial
legislatures. Canada evolved as a sovereign nation by gradually breaking
its ties with the United Kingdom. Its constitution consists of a series of
acts by the British Parliament starting in 1867[13] when it was granted
dominion status and responsible government. The British monarch,
represented by the governor general, is the head of state.
Canada is a common law country except for Quebec, which has a civil law
regime. Except where statutes supercede it, the common law is made by the
judiciary. Until 1949 the Privy Council was the court of last resort. By
act of the British Parliament,[14] as part of the repatriation of the
Canadian constitution, the Charter of Rights and Freedoms became part of
Canada's fundamental law. The judiciary is organized on a provincial basis,
but the federal government appoints the judges. For most provinces there is
a first-level trial court, such as the Ontario Superior Court of Justice,
and a second-level appellate court, such as the Ontario Court of Appeal.
Appeals from provincial courts of appeal are to the Supreme Court of
Canada. There is also a separate federal court system with trial and
appeals courts that handles matters of federal jurisdiction such as
copyright and maritime law. Ordinarily the supreme court hears only cases
of national significance that resolve charter issues and conflicting
decisions of provincial appeals courts.[15]
NEW YORK TIMES v. SULLIVAN
Until New York Times v. Sullivan the American states adhered to the strict
liability common law of libel the country had inherited from Great
Britain.[16] In 1942 the United States Supreme Court declared libel was a
type of speech outside the protection of the First Amendment.[17] In
Sullivan the Court said the common law "is constitutionally deficient for
failure to provide the safeguards for freedom of speech and of the press
that are required . . . in a libel action brought by a public official
against critics of his official conduct."[18] The Court decided that the
First Amendment mandated a "federal rule that prohibits a public official
from recovering damages for a defamatory falsehood relating to his official
conduct unless he proves the statement was made with 'actual malice'---that
is, with knowledge it was false or with reckless disregard of whether it
was false or not."[19] Moreover, the Court held, actual malice must be
proved by clear and convincing evidence.[20]
The Supreme Court decided Sullivan against the background of resistance in
the 1950s and 1960s by the political establishment in the American South to
the civil rights movement and the fight for equality for African Americans.
That establishment had found the common law of libel an effective weapon
for curbing exposure and criticism by the news media of efforts to preserve
the racial caste system. Those efforts ranged from denial of jobs to
supporters of racial equality to violence. Particular targets were the New
York Times and other northern newspapers and the national television
networks.[21] The common law of libel was a strict liability tort and
required a person who believed himself defamed to prove only that a
statement was libelous, was of and concerning him, and had been published.
Falsity and damages such as shame and humiliation were presumed.
Publication with intent to inflict harm also was presumed.[22] The burden
was on the person sued to prove the alleged libel was substantially true or
a privilege applied. The most common news media privileges were to publish
fair and accurate stories about public proceedings and to comment
reasonably and honestly on public issues.[23] The harshness of strict
liability and the removal of the burden of proof from the person who sued
led the southern establishment to use the courts "to transform the
traditional libel action, designed to repair the reputation of a private
party, into a state political weapon to intimidate the press."[24] At the
time the Court decided Sullivan southern officials had filed suits seeking
almost $300 million in defamation damages against the press.[25]
Sullivan resulted from a trumped-up charge of tax evasion by the State of
Alabama against Dr. Martin Luther King, Jr., the leader of the southern
civil rights movement. His supporters, seeking to raise money to pay King's
legal expenses, purchased a full-page advertisement titled "Heed Their
Rising Voices" in the New York Times.[26] The ad described how police in
Montgomery, the capital of Alabama, had suppressed non-violent civil rights
protests. The descriptions were substantially true but inaccurate in
detail. Although he was not mention by name, Montgomery Police Commissioner
Louis Sullivan claimed the ad was of and concerning him. He alleged the
descriptions were false and libelous and sued. An Alabama court found the
ad defamed Sullivan and awarded him $500,000 in damages against the Times
and $500,000 against four African American ministers who signed the
ad.[27] The Alabama Supreme Court affirmed the verdict.[28]
In an opinion written by Justice William N. Brennan, the Court said the
decision of the Alabama courts amounted to an assault on the right of
citizens to criticize their government. The Court said the Times might
endure the verdict and other suits filed against it, but "(w)hether or not
a newspaper can survive a succession of such judgments, the pall and
timidity imposed upon those who would give voice to public criticism is an
atmosphere in which the First Amendment freedoms cannot survive."[29] The
Court said the common law rule requiring a newspaper to prove the truth of
its stories about public officials leads to self-censorship. With such a
rule, the Court observed, "would-be critics of official conduct may be
deterred from voicing their criticism, even though it is believed to be
true and even though it is in fact true, because of doubt whether it can be
proved in court or fear of the expense of having to do so."[30] The Court's
reliance on the First Amendment and its shaping of a broad rule protecting
reporting on public issues was a major policy decision. The justices could
have decided Sullivan on narrower due process grounds. The record was clear
that Alabama had corrupted two elements of its common law of libel. While
inaccurate in detail, the ad was substantially true[31] and it was not of
and concerning Sullivan.[32]
The Court decided in later decisions to apply the actual malice rule to
lawsuits by public figures[33] and candidates for public office[34] and to
include articles about arts, science and other areas of public
interest.[35] The reckless disregard element of actual malice was defined
as "those false statements made with the high degree of awareness of their
probable falsity"[36] and "the defendant in fact entertained serious doubts
as to the truth of his publication."[37] A person who sues must prove
falsity as well as fault.[38] In Gertz v. Robert Welch, Inc., the Court
held that "so long as they do not impose liability without fault, the
States may define for themselves the appropriate standard of liability for
a publisher or broadcaster of defamatory falsehood injurious to a private
individual."[39] Almost all states have chosen negligence as the fault
standard private figures must prove.[40] Noting that actual malice is a
subjective standard involving the state of mind of the publisher of an
alleged libel, the Court in Curtis Pub. Co. v. Butts ruled that a public
official or public figure, absent an admission of knowing or probable
falsity, must prove a severe departure from accepted journalistic standards
for a court to infer a journalist committed actual malice.[41]
Particularly important was Sullivan's shift in the burden of proof in
litigation. At common law most of the burden rested with those sued. The
news media seldom used truth as a defense because it was difficult and
expensive to prove. Moreover, if the defense proved unsuccessful, a court
could penalize the media for vigorously asserting the truth of a story by
awarding aggravated damages. After Sullivan the person suing had to prove
falsity and fault and the possibility of aggravated damages largely
disappeared. Public officials and public figures had a high hurdle in
proving knowing or probable falsity by clear and convincing evidence. The
evidentiary burden was lighter but still formidable for private figures.
One development in the wake of Sullivan's focus on the state of mind of
journalists was the Court's decision in Herbert v. Lando.[42] In Lando the
Court said the First Amendment offered no shield against investigation of
the news media's editorial decisionmaking by persons suing for libel. If
inquiries into the editorial process were barred, the Court said, it would
block what ordinarily would be the only way plaintiffs could produce
evidence of actual malice.[43]
The news media won a significant victory in Anderson v. Liberty Lobby that
made it easier for them to prevail in summary judgment when sued by public
officials or public figures.[44] Anderson was important because of the high
costs of libel trials. In some high-profile cases both sides have incurred
seven-figure costs. In Bose v. Consumers Union the Court ruled that appeals
courts in libel cases must make independent reviews of the evidence.[45]
The importance of Bose lies in the bias juries often show against the news
media. Plaintiffs prevail in most libel cases, which go to trial, but
appeals courts reverse two-thirds of those verdicts.[46] As a result of
Sullivan, public figures ranging from Israeli Prime Minister Ariel
Sharon[47] to the late Indian Prime Minister Morarji Desai,[48] from
Vietnam commander William Westmoreland[49] to entertainer Wayne Newton[50]
have lost libel actions against the news media. One scholar concluded that
libel suits are no longer a significant threat to the media in United
States courts.[51]
THE UNITED KINGDOM AND REYNOLDS
Four years after Hill v. Church of Scientology, the House of Lords decided
Reynolds v. Times Newspapers Ltd.[52] Although described as only an
expansion of the common law of qualified privilege, in fact Reynolds
created a sui generis privilege for the news media to publish libelous
material to the public when it is in the public interest that the public
receive such material. Historically the common law has recognized a
qualified privilege where a person has duty to communicate libelous
material and the recipient has an interest in receiving it. The privilege
covers such communications as reports of possible crimes to police and
references to potential employers. Only in rare instances did the privilege
include public affairs stories in the news media because the law did not
believe the public had an interest in receiving them.[53] The Court of
Appeal remarked in Blackshaw v. Lloyd that "(n)o privilege attaches yet to
a statement on a matter of public interest believed by the publisher to be
true and in relation to which he has exercised reasonable care."[54]
Reynolds changed the common law in the United Kingdom to include news media
stories within the gambit of qualified privilege where the duty-interest
test is met.[55]
Reynolds stemmed from a story in the British edition of the Sunday Times
about the resignation of Albert Reynolds as taoiseach (prime minister) of
the Irish Republic during a 1994 political crisis. The story accused
Reynolds of deliberately misleading the Dail over an appointment to the
presidency of the High Court of Ireland. Unlike the story in the Irish
edition of the Times, the article did not include Reynolds' comments about
the crisis. After Reynolds sued for libel over the British edition story, a
jury found he had been defamed and the judge granted him nominal
damages.[56] By the time an appeal reached the House of Lords, the issue
had become whether the common law of England recognized a public interest
privilege and, if so, the scope of the privilege.
Their lordships rejected any Sullivan-like actual malice rule. Lord Cooke
of Thorndon sternly criticized Sullivan.
As to defamatory allegations of fact, even in the United States the
opinions of jurists differ on the extent to which the collectively
cherished right of free speech is to be preferred to the individually
cherished right to personal reputation; and it is certain that neither in
the United Kingdom or anywhere else in the Commonwealth could it be
maintained that the people knowingly staked their all on unfettered freedom
to publish falsehoods of fact about political matters, provided only the
writer or speaker is not actuated by malice. It would be a mistake to
assume that commitment to the cause of human rights must lead to a major
abandonment of established common law limitations on political allegations
of fact.[57]
While rejecting Sullivan, Lord Steyn held in Reynolds that the obligation
of the United Kingdom under the European Convention on Human Rights is to
shape its law so "freedom of expression is the rule and regulation of
speech is the exception requiring justification. The existence and width of
any exception can only be justified if it is underpinned by a pressing
social need."[58] Lord Steyn said the European court case law held that
strict liability for defamation violated freedom of expression. The jurist
noted that law requires that the role of the press in reporting political
and other information be protected.[59] So, too, the watchdog role of the
press must be preserved.[60] Protection of free expression is not limited
to politics and government for the public interest is wider than political
speech.[61] The law allows a wider range of criticism of politicians than
of private individuals.[62] Freedom of expression is not only the right of
the publisher for the public has a right to receive information and ideas
of public interest.[63] Lord Nicholls of Birkenhead noted the European
court's jurisprudence protects the right of journalists to "supply reliable
and precise information in accordance with the ethics of journalism. But a
journalist is not required to guarantee the accuracy of his facts."[64] All
that is demanded is that a journalists have a reasonable basis for a
story.[65] The law lords said these legal principles framed their decision
in Reynolds.
Their lordships adopted a qualified privilege to publish in good faith
stories about matters of "serious public concern."[66] The privilege
attaches only if the media can prove they practiced responsible journalism.
Where stories are privileged, the media are relieved of the burden of
proving truth. Essentially the privilege creates a negligence fault
standard with the burden of proof being on the news media. Lord Nicholls
set forth a non-exhaustive list of 10 factors that courts should consider
in whether privilege is granted to a story: (1) The seriousness of an
allegation. The more serious a charge, the more the public is misinformed
and a claimant harmed, if the allegation is false; (2) The nature of the
information and the extent to which it is a matter of public concern; (3)
The reliability of sources; (4) The steps taken to verify the information;
(5) The status of the information. An allegation may have been the subject
of an investigation that commands respect; (6) The urgency of publication.
News is often a perishable commodity; (7) Whether comment was sought from
the claimant. While contacting a claimant may not always be necessary, he
may have information others do not possess; (8) Whether an article
contained the gist of a claimant's side of a story; (9) The tone of the
article. A newspaper can pose queries or call for an investigation. It need
not state allegations as facts; (10) The circumstances of publication,
including timing.[67] While all five law lords agreed to establishing the
public interest privilege, by 3-to-2 their lordships rejected privilege for
the Sunday Times article on Reynolds. The key to the decision was the
failure to mention in the article Reynolds' explanation of the controversy
to the Dail. The omission made the article information the public had no
"right to know."[68]
Lord Nicholls cautioned against courts using the factors to take a
restrictive view of the press.
(I)t should always be remembered that journalists act without the benefit
of the clear light of hindsight. Matters which are so obvious in retrospect
may have been far from clear in the heat of the moment. Above all, the
court should have particular regard for the importance of freedom of
expression. The press discharges vital functions as a bloodhound as well as
a watchdog. The court should be slow to conclude that a publication was not
in the public interest and, therefore, the public had no right to know,
especially when the information is in the field of political discussion.
Any lingering doubts should be resolved in favour of publication.[69]
The law lords left the parameters of the public interest privilege for
case-by-case development. So far there is a mixed record on development of
the privilege. In one high-profile case involving stories alleging an
international arms dealer was guilty of money laundering, the privilege was
denied. The court ruled the allegations were of legitimate public interest,
but the sources were low-grade and journalists did not obtain the arms
dealer's side of the story.[70] A court found the public interest privilege
attached to a story about feuding Saudi Arabian political factions. The
story contained a sexual slur against the claimant's mother. The court said
the story was part of reporting about an ongoing political dispute.[71]
CANADA'S HARSH LIBEL REGIME
While the United States in Sullivan opted to liberalize its libel law,
Canada chose to retain its plaintiff-friendly strict liability common law
of defamation that had not changed significantly since the 19th
century.[72] A Canadian jurist cited this description of the "somewhat
archaic character" of the law:
The law of defamation has been unkindly referred to as a mausoleum of
antiquities peculiar to the common law and unknown elsewhere in the
civilized world . . . Even for those who have studied the law of defamation
well and have mastered it intricacies, it remains a labyrinth of
uncertainties, of false clues, blind alleys, and unexplored passages. As a
result we have become the beneficiary of centuries of haphazard, Byzantine
and often baffling evolution.[73]
The Supreme Court of Canada in Hill v. Church of Scientology rejected an
opportunity to reform the nation's libel law and reconcile it with the
guarantee of freedom of the press in the Charter of Rights and Freedoms. As
one scholar observed, Hill represents the nadir of Canadian constitutional
jurisprudence on freedom of expression.[74] Hill is not a media case, but
it involved dissemination of false statements through the media and its
main impact is probably on the media. It originated in the largest police
raid in Ontario history. More than 100 police wielding a battering ram,
sledgehammers and axes descended in 1983 on the Church of Scientology in
Toronto. About 250,000 documents, comprising over one million pages, were
seized. The church obtained a court order sealing about 200 of the
documents. When a court issued an order giving a government official access
to the sealed documents, the church claimed the access was unlawfully
granted because it had not been given notice of the court hearing on
unsealing of the documents. The church blamed the debacle on S. Casey Hill,
a crown prosecutor overseeing Ontario's action against the church. The
church held a press conference at which Hill's alleged behavior was
denounced. Morris Manning, the church's attorney, released a contempt of
court citation which he said would be filed against Hill. Newspapers and
national television reported the denunciation of Hill,[75] but the play
given the stories was not overly prominent.[76] Evidence established that
the accusations against Hill were false. In fact, although entitled to do
so under the court order, the government official failed to access the
documents. Later, a court ordered the documents returned to the church.
Hill filed and won a libel suit against the church and Manning. A court
awarded general damages of $300,000 against the church and Manning.
Aggravated damages of $500,000 and punitive damages of $800,000 were
assessed against the church.[77] At the time the total of $1.6 million was
the largest libel verdict in Canadian history. With interest and legal
costs, the church paid $2,954,000 to Hill.[78]
The Ontario attorney general's office employed Hill and assigned him to
supervise the police action brought by the crown. The crown financed Hill's
libel action. Under United States law, the enforcement of the common law by
courts is state action. The courts are arms of government. That is not the
way the Supreme Court of Canada views challenges to the common law under
the Charter of Rights and Freedoms. In RWDSU v. Dolphin Delivery Ltd., the
court held the charter does not directly apply to the common law unless it
is basis of some government action.[79] Rather, the court ruled, the common
law must be developed in accordance with charter values.[80] As a result of
Dolphin Delivery, anyone who challenges the common law as inconsistent with
the charter bears the onus of proving the common law does not reflect a
charter value.[81] In an opinion penned by Justice Peter Cory,[82] the
court said Hill's libel suit neither involved government action nor Hill as
a crown attorney. It called the suit a private action by Hill to vindicate
his professional reputation as an attorney.[83] Even under the Dolphin
Delivery standard, it is difficult to see the logic of the ruling. At least
the Ontario ministry in charge of enforcing a freedom of information act
did not see the logic. The ministry rebuffed the attorney general's refusal
to release information about the financing of Hill's suit. Saying the suit
arose from an attack on Hill acting within his authority as prosecutor, the
ministry stated, "In an effort to protect the integrity of the legal system
and Crown prosecutors against such attacks, the government funded this
action."[84] By ruling the libel suit was a private action, the court
relieved itself of the obligation to decide whether the common law of libel
violated the free expression provision of the charter.[85] While the common
law should develop consistent with charter values, the court observed, the
judiciary "must not go further than is necessary when taking Charter values
into account. Far-reaching changes to the common law must be left to the
legislature."[86]
The outcome of the suit illustrates the pro-plaintiff bias of the common
law of libel and why the news media is deterred from claiming truth as a
defense. Justice Cory described the actions of the church in defending
itself as "misconduct" that "continued after first publication."[87]
Because the church and Manning did not prevail in their contempt claim, the
court concluded, they knew their allegations were false. Still they raised
the defense of substantial truth in the libel suit. The court added that
"the manner in which Hill was cross-examined by the appellants, coupled
with the manner in which they presented their position to the jury, in
light of their knowledge of the falsity of their allegations, are further
aggravating factors to be taken into account."[88] The court said such
conduct justified an award of general damages.[89] Malice is required for
an award of aggravated damages, the court observed, and such was
demonstrated by the church in maintaining a file titled "Enemy Canada" that
contained information about Hill, in pleading substantial truth, in its
demeaning cross-examination of Hill, and by describing him to the jury as
"a manipulative actor."[90] While out-of-bounds under Sullivan and its
progeny, award of aggravated damages where a vigorous defense fails
comports with the common law of libel.[91] Problematic, however, was the
court's conclusion that the church's post-trial behavior could be grounds
for justifying aggravated damages of $500,000 awarded at trial. This
conduct included repeating the libel after trial and thereby forcing Hill
to obtain a court order against such repetition and continuing to plead
substantial truth in its appeal.[92] The court ruled the award of $800,000
in punitive damages served a rational purpose of deterring conduct that "is
truly outrageous."[93] Any concern that the award might not be rational
given the $800,000 in general and aggravated damages, the court commented,
is "resolved when Scientology's persistent misconduct subsequent to the
trial is considered."[94]
The compensatory damages awarded in Hill were at the time the highest
sustained on appeal to the Supreme Court. The highest previous award was
$135,000 a Quebec jury returned against the Montreal Gazette.[95] Those
awarded to Hill had to be based on injuries to his self-esteem because he
suffered no financial or social losses. In what can only be labeled
speculation, the Justice Cory described his estimate of the damage to
Hill's sense of his professional worth in melodramatic terms.
The nagging doubt and sense of hurt must have affected him in every
telephone call he made and received in the course of his daily work, in
every letter he sent and received and in every appearance that he made
before the courts in the province of Ontario. He would never know who, as a
result of the libelous statement, had some lingering suspicion that he was
guilty of misconduct which was criminal in nature. He would never know who
might have believed that he was a person without integrity who would act
criminally in the performance of his duties as a Crown counsel. He could
never be certain who would accept the allegation that he was guilty of a
criminal breach of trust which was the essential thrust of the libel.[96]
The description is belied by the fact that during the course of the legal
proceedings, Hill received promotions and eventually was appointed a
judge.[97] The Church of Scientology's record of pursuing libel and other
legal actions against it critics is widely known among legal and other
circles, and any allegations it made against Hill were unlikely to be
believed by his legal peers. Perhaps Hill is more sensitive than most
lawyers, but most reasonable people would likely conclude he suffered no
more than passing emotional harm. It is nearly certain Hill's reputation
sustained no damage. Rather he was the beneficiary of the common law
principle that "general damages in defamation cases are presumed from the
very publication of the false statement and are awarded at large."[98]
Canada has capped awards for non-pecuniary damages in personal injury
cases. The cases reaching that decision held non-pecuniary damages should
not be more than $100,000.[99] At least according to the testimony of Hill
cited by the court, Hill sustained only non-pecuniary harm.[100] The court
relied on the legal fiction that defamation is an intentional tort to
reject a cap on libel damages. The court conceded that "actual intention to
defame is not necessary to impose liability . . . the intention to do so is
nevertheless inferred from the publication of the defamatory
statement."[101] The court concluded that a cap on libel damages could act
as the "maximum cost of a license to defame. A cap would act in a manner
that would change the whole character and function of the law of
defamation. It would amount to a radical change in policy and direction for
the courts."[102] The court's analysis ignores the fact that punitive
damages are available to deter intentional harm. It is difficult to
conclude Hill suffered anywhere near the emotional harm that victims of
serious physical injury sustain. More probable is reluctance by the court
to alter the bias its defamation law has in favor of toward society's elites.
Another reason given for rejecting a cap was the low level of damage awards
in defamation cases in Canada. The court said a review of damage awards in
27 reported cases from 1987 to 1991 showed an average award of $30,000.
From 1992 to 1995 the average award in 24 reported cases was less than
$20,000.[103] The court's analysis was deficient in two respects. One is
that it did not consider the effect of Hill, in which the crown attorney
suffered only highly speculative---if any---injury to his reputation, in
setting a new benchmark. The other is a lack of recognition that Canada
adheres to the English rule under which the loser in a lawsuit pays at
least a large part of the winner's attorney fees and other legal costs.
Sometimes those costs can far exceed any award of damages. After Hill libel
verdicts shot upwards. Among them were awards of $700,000 to a Toronto
lawyer for an item in a Globe and Mail sports column,[104] $140,000
non-pecuniary and $325,000 economic damages to a Toronto lawyer,[105]
$780,000 to an engineer commissioner for a public agency,[106] $950,000 in
general, aggravated and punitive damages to a doctor featured in a health
safety telecast[107] and $350,000 in general and aggravated damages to
another doctor in the telecast.[108] The engineering commissioner was
awarded $848,000 in costs.[109] The doctor in the telecast received
$836,200 in costs while his colleague got $100,000.[110] The chief coroner
of Ontario won $90,000 in libel damages[111] and recovered $211,000 in
legal costs.[112]
The Church of Scientology argued that the court should import the Sullivan
actual malice standard into Canadian libel law. The court refused and noted
the rule "has been severely criticized by American judges and academic
writers. It has been suggested that the decision was overly influenced by
the dramatic facts underlying the dispute and has not stood the test of
time."[113] The court gave two major reasons for rejecting the Sullivan rule.
First, the court said, a factor motivating the Sullivan Court was the
immunity from libel actions of public officials in the United States for
statements within the boundaries of their public duties. Such immunity
generally is not available in Canada,[114] but speech in parliament is
absolutely privileged and speech by ministers outside parliament has been
protected occasionally.[115] Immunity in the United States was dictated by
the Supreme Court in Barr v. Mateo because the threat of libel suits could
"dampen the ardor of all but the most resolute, or the most irresponsible,
in the unflinching discharge of their duties."[116] In Sullivan the Court
said similar protections should be available for citizens who criticize the
official conduct of public officials.[117] The Canadian court was correct
that Barr influenced the Sullivan Court, but it failed to mention the
greater impact of Bridges v. California[118] and City of Chicago v. Tribune
Co.[119] where the right of citizens to criticize government and its
officials was paramount over official privilege.[120]
Second, the court commented, the decision has switched the focus of libel
suits away from their original essential purpose of determining the truth
of alleged defamatory statements. Rather, the focus under Sullivan is the
fault standard and whether the defendant has violated it.[121] It is true
that libel suits involving public officials and public figures in the
United States tend to focus on journalistic behavior. However, in the
Canadian common law context, this criticism loses its force because the
falsity of alleged libels is presumed and the burden of proof is placed on
defendants. They are deterred from proving truth not only by the difficulty
and expense of doing so, but also because they are subject to aggravated
damages if they fail to do so. Although it can't be documented, based on
the experience of the United Kingdom[122] and Australia,[123] Canada's
common law of libel probably results in plaintiffs committing perjury.
Citing American legal literature, Justice Cory claimed bad consequences
flow from a shift in focus to media behavior. One such result is that it
may "deny the plaintiff the opportunity to establish the falsity of the
defamatory statements and to determine the consequent reputational
harm."[124] The logic of the court's criticism[125] is difficult to divine.
Under Sullivan the person who sues must prove falsity and fault. Under
Canadian common law falsity and damages are presumed. Because of the
penalties that can follow from raising the defense of substantial truth and
the expense that defendants often would have to incur in proving
truth---and aggravated damages if the defense fails---the common law deters
inquiries into the truth of alleged libelous statements. In fact, truth is
more likely to result from an action under Sullivan doctrine.
Another negative consequence of the switch in focus, in the court's view,
is that Sullivan "necessitates a detailed inquiry into matters of media
procedure. This, in turn, increases the length of discoveries and of trial
which may actually increase, rather than decrease, the threat to speech
interests."[126] Still another consequence is that "it dramatically
increases the cost of litigation. This will leave the plaintiff who has
limited funds without recourse."[127] This criticism misperceives the
effect of Sullivan. Plaintiffs do not ordinarily finance libel suits in the
United States. Personal injury attorneys litigate them on a contingency fee
basis. This has the desirable effect of weeding out potential suits that
have little chance of success. A final consequence is "the fact that the
dissemination of falsehoods is protected is said to exact a major social
cost by deprecating truth in public discussion."[128] Undoubtedly there is
some validity to this criticism, but offsetting it is the encouragement it
gives to vigorous investigative journalism by the American news media.
Exposure of the seamier underside of Canadian politics is not a hallmark of
the Canadian press.
In summary the Supreme Court of Canada said of Sullivan:
The New York Times rule thus countenances two evils: first, the stream of
information about public officials and public affairs is polluted and often
remains polluted by false information; and second, the reputation and
professional life of the defeated plaintiff may be destroyed by falsehoods
that might have been avoided with a reasonable investigation of the facts.
In terms of the First Amendment and reputational interests at stake, these
seem grossly perverse results.[129]
The criticism has some sting, but it ignores the holding of the United
States Supreme Court that a deliberate effort to avoid investigation of
facts,[130] as well as other severe departures from acceptable journalistic
standards,[131] is evidence of actual malice.
Justice Cory concluded that the common law of libel strikes a beneficial
balance between charter values of human dignity, of which reputation is a
part, and freedom of expression.
I see no reason for adopting it (actual malice rule) in Canada in an action
between private litigants. The law of defamation is essentially aimed at
the prohibition of the publication of injurious false statements. It is the
means by which the individual may protect his or her reputation which may
well be the most distinguishing feature of his or her character,
personality and, perhaps, identity. I cannot see that the law of defamation
is unduly restrictive or inhibiting. Surely it is not requiring too much of
individuals that they ascertain the truth of the allegations they publish.[132]
Commentators have noted that freedom of expression is explicitly guaranteed
in the charter[133] while charter values, including reputation, are
implied.[134] By confining the conclusion to litigation between private
parties---despite the term of art definition of private party to include a
crown attorney acting in his official capacity---the court appears to have
left the door open for reconsideration of the strict liability nature of
libel law in Canada as it relates to its Charter of Rights and Freedoms.
THE PUBLIC INTEREST PRIVILEGE
The public interest privilege found by the House of Lords in Reynolds v.
Times Newspapers Ltd. is an expansion of qualified privilege in the common
law of libel. In that regard Reynolds did not conflict with the rejection
by Hill of a Sullivan-like actual malice standard. After their lordships
decided Reynolds, Canadian news media began pleading the public interest
privilege in libel cases. The courts were hostile to finding a public
interest privilege until a breakthrough in Jones v. Campbell,[135] a
decision of the Nova Scotia Court of Appeal. Some cases are stark
illustrations of the use of hostile libel law to protect elites.
In 1996 the Canadian Broadcasting Corp. (CBC), on its The Fifth Estate,
broadcast a one-hour documentary alleging that use of nifedipine, a drug
often prescribed for heart medication and hypertension, might be
endangering the lives of patients. The program was critical of Dr. Frans
Leenen, director of the hypertension unit of the Ottawa Heart Institute,
had defended use of the drug in a letter sent out by Pfizer Canada to
physicians. Some of Leenen's research had been funded by multi-national
drug companies. He had accepted benefits from Pfizer as a member of its
advisory committee, including a trip to Egypt. The program portrayed Leenen
as being influenced in his views on nifedipine by money from drug
companies. Leenen sued for libel and was awarded $950,000 in damages and
$836,200 in legal costs.[136]
The program unquestionably was unfair to Leenen, but it did raise genuine
issues of corporate influence on the Canadian government's drug regulatory
regime. The CBC pleaded that had a duty to broadcast information on what
was an important medical controversy and the public had an interest in
receiving it. The court ruled the broadcast was not in the public interest.
It held the medical controversy was one created by two physicians who
dissented from the consensus of the medical community on nifedipine.[137]
The court second-guessed the CBC producers. The judge said the program "had
everything to do with sensationalizing an issue, with creating viewer
interest through alarm and with providing a podium for its producer's long
held views, capably assisted by the overheated concerns of a disgruntled
regulator."[138] Any bias in the telecast was equaled only by that of the
judge's prejudiced view of the program. Unlike the program, the judge's
assessment had everything to do with chilling freedom of expression. The
decision was an example of the Canadian judiciary's bias against
non-establishment views. It penalized the CBC for broadcasting strongly
held interpretations of the alleged egregious effects of corporate
influence on government health policy.
In Young v. Toronto Star Newspapers,[139] Dr. James Young, chief coroner of
Ontario, won a libel suit stemming from a newspaper story reporting on a
barrister's claim that evidence in a murder trial had been distorted by
political pressure. The reporter had not included information arguably
refuting the charge because she believed it was covered by a publication
ban. The court found the barrister's allegations unfounded. The court said
the story could have been written in a manner which conveyed the gist of
Young's side of the story without violating the publication ban.[140] The
judge said alleging "corruption and political interference of a senior
government official goes to the heart of that person's ability to
accomplish his duties."[141] While omissions from the story resulted in
one-sidedness, the information also is of the type that goes to the heart
of creating an informed citizenry, and Young is a public official who can
command coverage for his views.
The Nova Scotia Court of Appeal found in Jones v. Campbell that the
defamatory and arguably false comments by two lawyers about the behavior of
a police officer were protected by a public interest privilege. The case
arose when Halifax Constable Carol Campbell was called to a school to
investigate a theft in which three African Canadian 12-year-old girls were
suspected. Without warning the girls of their right to counsel or calling
their parents or guardian, the officer required the girls to remove much of
their clothing and pull their underpants away from their bodies. The
officer found the $10 on one girl. The news media learned of the incident
and reported under headlines such as "Girls Stripped Searched At School"
the officer's conduct. Parents and a guardian of the girls filed an action
against school and police authorities. A settlement was reached in which
the authorities acknowledged the girls' charter rights had been
violated.[142] Burley S. Jones and Anne A. Derrick, lawyers for the girls,
had announced the filing of the complaint at a press conference. They
asserted Campbell had strip searched the girls and claimed such conduct
would not have occurred if the girls had not been African Canadian and had
not come from poor families. Claiming she had not strip searched the girls
and she had not acted out of racism, Campbell sued for libel. After
rejecting a plea of public interest privilege, the trial court found the
lawyers had defamed her and awarded her $240,000 in damages and $75,000 in
legal costs.[143]
In a 2-to-1 decision the appeals court reversed and said that if
"constitutional rights are to have any meaning, they must surely include
the freedom of persons whose Charter guarantees have been deliberately
violated by officials of state agencies to cry out loud and long against
their transgressors in the public forum."[144] The key to the court's
opinion, written by Justice J.A. Roscoe, was the gravity of the issue due
to the violation of charter rights. The court said the comments of the
lawyers were not motivated by malice and "were germane and commensurate
with the occasion."[145] The court commented that public discussion is an
effective tool in fighting systemic racism and "discussion close to the
time of the relevant events would reasonably be expected to be more
effective than discussion months after the fact."[146]
Hill left open the question of whether libel law should allow a privilege
for political discussion such as those adopted later by Australia and New
Zealand. The Alberta Queen's Bench in Goddard v. Day considered and
rejected the privileges adopted by the antipodean nations.[147] The court
said if either of the privileges were imported to Canada they would
discourage qualified people from seeking public office.[148]
OTHER COMMON LAW COUNTRIES
While the Supreme Court of Canada was reaffirming its commitment to the
strict liability common law of libel, at least five common law democracies
during the past decade reformed their libel law and abandoned strict
liability.[149] India is the only other common law nation that has adopted
a Sullivan-like actual malice rule. The Supreme Court of India held in
Rajagopal v. Tamil Nadu that public officials and public figures cannot
recover libel damages even "where the publication is based on facts and
statements which are not true" unless they establish "the publication was
made with reckless disregard for the truth."[150] The court injected some
ambiguity into the rule by saying that "(I)n such a case, it would be
enough for the defendant to prove that he acted after a reasonable
verification of the facts; it is not necessary for him to prove that what
he has written is true."[151] The court quoted at length from Sullivan in
justifying its adoption of the rule. Other nations have liberalized their
libel law through expansion of the common law rather than following Sullivan.
In National Media Ltd. v. Bogoshi the Supreme Court of Appeal of South
Africa rejected both Sullivan and the strict liability of the common law of
libel.[152] The court said the law must protect "the function of the press
to ferret out corruption, dishonesty and graft wherever it may occur and to
expose the perpetrators."[153] Remarking that "nothing can be more chilling
than the prospect of being mulcted in damages for even the slightest
error,"[154] the court pronounced the following rule:
(T)he publication in the press of false defamatory allegations of fact will
not be regarded as unlawful if, upon consideration of all the circumstances
of the case, it is found to have been reasonable to publish the particular
facts in the particular way and at the particular time.[155]
The court said reasonableness will depend on such factors as the nature,
extent and tone of the allegations, the nature of the information on which
the allegations are based and the reliability of sources, and steps taken
to verify the allegations.[156] Proof of reasonableness is the burden of
the news media and "will usually (if not inevitably) be proof of lack of
negligence."[157] The Constitutional Court has held that the Constitution
of South Africa is not violated by placing the onus of proving truth on the
news media.[158]
In 1994 the High Court of Australia recognized a constitutional privilege
to publish in good faith in the news media defamatory stories about
government and politics.[159] Three years later in Lange v. Australian
Broadcasting Corp. the court ruled that basing the privilege directly on
the constitution was bad law, but it held that the common law must be
changed to comport with the constitution and created a common law qualified
privilege.[160] That privilege applies to discussion of government and
politics and is available only if a journalist acted reasonably.
Whether the making of a publication was reasonable must depend upon all the
circumstances of the case. But, as a general rule, a defendant's conduct in
publishing material giving rise to a defamatory imputation will not be
reasonable unless the defendant had reasonable grounds for believing the
imputation was true, took proper steps, so far as they were reasonably
open, to verify the accuracy of the material and did not believe the
imputation to be untrue. Furthermore, the defendant's conduct will not be
reasonable unless the defendant has sought a response from the person
defamed and published the response made (if any) except where the seeking
of a response was not practicable or it was unnecessary to give the
plaintiff an opportunity to respond.[161]
Since Lange Australian state high courts have applied the privilege to
publications on the behavior of judges[162] and prosecutors,[163] teaching
methods and spending of tax money by schools,[164] conduct of a member of a
government commission,[165] and real estate dealings of a municipal
councilor.[166]
In contrast to the United Kingdom public interest privilege and the
Australian political discussion privilege---both of which are
fault-based---New Zealand has adopted a no-fault for stories about persons
elected or seeking election to parliament.[167] The Court of Appeal explained:
(T)he Reynolds decision appears to alter the structure of the law of
qualified privilege in a way which adds to the uncertainty and chilling
effect almost inevitably present in this area of law. We are not persuaded
that in the New Zealand situation matters such as the steps taken to verify
the information, the seeking of comment from the person defamed, and the
status or source of the information, should fall within the ambit of the
inquiry into whether the occasion is privileged.[168]
While fault is not part of the privilege, the circumstances of publication
are. The court said:
(I)t is questionable whether a one line reference to alleged misconduct of
a grave nature on the part of a parliamentary candidate reflecting on his
or her suitability, appearing in an article in a motoring magazine about
that person's activities in motor sport should receive protection. By
contrast, the inclusion of such material in a lengthy serious article on a
coming election may justifiably attract the protection.[169]
The privilege also can be defeated if a journalist does not believe what he
has written or is motivated by ill will.[170]
The Court of Appeal has refused to extend the privilege beyond stories
about persons elected or seeking election to parliament. Vickery v. McLean
involved allegations of corruption against three senior civil
servants.[171] The court said the allegations were not political discussion
of the type contemplated under Lange and it "would be contrary both to
settled law and to the public interest to allow such communications to be
made under qualified privilege."[172] The court said such statements should
be privileged only if made to police.[173]
CONCLUSIONS
Hill v. Church of Scientology is a blight on freedom of expression in
Canada. The Church of Scientology is an unpopular religion in the eyes of
many and often engages in behavior that Justice Cory termed "recklessly
high-handed, supremely arrogant and contumacious."[174] That does not
justify the government financing a libel suit that resulted in an award of
$1.6 million to a crown prosecutor who cannot be reasonably said to have
suffered any harm to his reputation.[175] While the Canadian government's
actions against the church are not nearly as egregious as those of the
southern elite against the New York Times in the 1950s and 1960s, they are
of the same genre. Hill was part of an effort to punish the church for
criticism of a public official. That type of government behavior is
encouraged by Canada's adherence to the strict liability regime of its
common law of libel.
Some softening of libel law may come from consideration by provincial
courts of the Reynolds public interest qualified privilege. So far it is a
frail reed. Except for Jones v. Campbell, the courts have rejected the
privilege and instead weighed the reputation of public officials more
highly than the need for a vigorous press that monitors the behavior of
public officials and public figures. Some erroneous statements, as Justice
Brennan pointed out in Sullivan, are inevitable in a society that welcomes
free and open debate over public policy and the behavior of those who make
it. Experience has proven public officials are able to thrive in such a
milieu.[176] The difficulty with Reynolds privilege is that the many
factors that can be used to determine whether the public interest privilege
attaches creates a legal regime fraught with uncertainty and wide
discretion for the biases of judges. At least that is true at this stage of
development of case law interpreting the privilege.
It is noteworthy that both Sullivan and Jones involved race. Both cases
involved efforts by officialdom to suppress criticism of their policies
toward racial minorities. Sullivan was far more egregious, but Jones
stemmed from the common practice of police groups in many countries to
misuse the law to punish critics of their conduct. Of course, Hill involved
collaboration between a crown official and a crown agency to use libel law
to punish critics. S. Casey Hill is not the most privileged person in
Canada, but he is a member of the privileged. It is not the privileged who
need the shield of the law. It is the watchdogs and critics of the
privileged who do.
[1] Sect. 2(b) of the charter provides, "Everyone has the following
fundamental freedoms: . . . (b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of
communication." Sect. 1 of the charter subordinates the freedoms "to such
reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society."
[2] New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
[3] Id at 271-72 (citations omitted).
[4] Hill v. Church of Scientology, (1995) 2 S.C.R. 1130, 1173, quoting
GATLEY ON LIBEL AND SLANDER (4th ed.).
[5] Eric Barendt et al, LIBEL AND THE MEDIA: THE CHILLING EFFECT (1997);
Russell L. Weaver and Geoffrey Bennett, Is the New York Times "Actual
Malice Standard Really Necessary? A Comparative Perpective, 53 La. L.Rev.
1153 (1993), and New York Times v. Sullivan: the "Actual Malice"-standard
and editorial decisionmaking, 14 J. Med. L. & Practice 1 (1993). See Alex
Wade, What the papers can say---it's all down to the lawyer, The Times,
Feb. 4, 2003.
[6] (1999) 4 All E.R. 609 (HL).
[7] Rajagopal v. Tamil Nadu, 1995 A.I.R. 264 (SC).
[8] National Media Ltd. v. Bogoshi, 1998 (4) S.A. 1196 (SCA)
[9] Theophanous v. Herald Weekly Times Ltd., 182 C.L.R. 104 (1994) (HC);
Stephens v. West Australian Broadcasting Corp., 182 C.L.R. 211 (1994) (HC);
Lange v. Australian Broadcasting Corp., 189 C.L.R. 520 (1997) (HC).
[10] Lange v. Atkinson, (1998) 3 N.Z.L.R. 424 (CA), (2000) 1 N.Z.L.R. 257
(Privy Council), (2000) 1 N.Z.L.R. 258 (CA).
[11] Canadian legal scholars have criticized Hill as inconsistent with
freedom of expression. Jeremy Streeter, The 'Deception Exception': A New
Approach to Section 2(b) and Its Impact on Defamation Law, 61 U.T. Fac.
L.Rev. 79 (2003); Richard Moon, Justified Limits on Free Expression: The
Collapse of the General Approach to Limits on Charter Rights, 40 Osgoode
Hall L.J. 337 (2002); Denis W. Bolvin, Accommodating Freedom of Expression
and Reputation in the Common Law of Defamation, 22 Queen's L.J. 229 (1997);
Jamie Cameron, The Past, Present, and Future of Expressive Freedom Under
The Charter, 35 Osgoode Hall L.J. 1 (1997); Charles Tingley, Reputation,
Freedom of Expression and the Tort of Defamation in the United States and
Canada: A Deceptive Polarity, 37 Alberta L.Rev. 620 (1999). Justice Allen
M. Linden has defended Hill with only perfunctory analysis. Linden, The
American Influence on Canadian Tort Law, 50 UCLA L.Rev. 407, 424 (2002).
[12] Sect. 24. Under Sect. 33, parliamentary supremacy is preserved by
providing that parliament or a provincial legislature may pass legislation
that supercedes fundamental rights granted citizens if the legislation so
provides.
[13] Constitution Act 1867 (formerly British North American Act 1867).
[14] Constitution Act 1982.
[15] See Ted Tjaden, Doing Legal Research in Canada,
http://www.llrx.com/features .
[16] All states but Louisiana are common law states. Reflecting its French
heritage, Louisiana follows a civil law regime. Due to the supremacy
clause, all state law is subordinate to the United States Constitution.
[17] Chaplinsky v.New Hampshire, 315 U.S. 568, 572 (1942).
[18] Sullivan at 264.
[19] Id at 279-80.
[20] Id at 285-86.
[21] Harrison E. Salisbury, WITHOUT FEAR OR FAVOR 381-90 (1980).
[22] Rodney Smolla, LAW OF DEFAMATION, sect. 1.8 (1999).
[23] Id at sect. 8.
[24] Anthony Lewis, MAKE NO LAW 35 (1991).
[25] Id at 36.
[26] New York Times, March 29, 1960.
[27] Sullivan at 256-59. Other lawsuits over the ad sought $2 million more
in damages.
[28] 144 So.2d 25 (Ala. 1962).
[29] Sullivan at 278.
[30] Id at 279.
[31] Id at 258-59.
[32] Id at 288.
[33] Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967).
[34] Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner
Co. v. Damron, 401 U.S. 295 (1971).
[35] Time, Inc. v. Hill, 385 U.S. 374, 388 (1967).
[36] Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
[37] St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
[38] Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69 (1986).
[39] 418 U.S. 323, 347 (1974). The choice is only for compensatory
damages. Gertz said private figures must prove actual malice to collect
punitive damages.
[40] Smolla, sect. 3.3.
[41] Curtis Pub. Co. at 155.
[42] 441 U.S. 153 (1979).
[43] Id at 170.
[44] 477 U.S. 242 (1986).
[45] 466 U.S. 485 (1984).
[46] David Logan, Libel Law in the Trenches: Reflections on Current Data
on Libel Litigation, 87 Va. L.Rev. 503, 509-18 (2001).
[47] Arnold H. Lubash, Time Cleared of Libeling Sharon But Jurors
Criticize Its Reporting, New York Times, Jan. 25, 1985.
[48] Desai v. Hersh, 954 F.2d 1405 (7th Cir. 1992).
[49] M.A. Farber, Suit Against CBS Is Being Dropped by Westmoreland, New
York Times, Feb. 18, 1975.
[50] Newton v. National Broadcasting Co., 930 F.2d 662 (9th Cir. 1990).
[51] Logan at 529.
[52] (1999) 4 All E.R. 609 (HL).
[53] Chapman v. Ellesmere, (1932) 2 K.B. 431 (CA); London Artists v.
Littler, (1968) 1 W.L.R. 607; Banks v. Globe & Mail, (1961) S.C.R. 474;
Morosi v. Mirror Newspapers, (1977) N.S.W.L.R. 749 (CA).
[54] (1983) 2 All E.R. 311, 327 (CA).
[55] Reynolds at 610, 625-26.
[56] Id at 614
[57] Id at 629.
[58] Id at 629.
[59] Id at 635, citing Castells v. Spain, 14 E.H.R.R. 445, 476 (1992).
[60] Id, citing Goodwin v. United Kingdom, 22 E.H.R.R. 123, 143 (1996).
[61] Id, citing De Haes v. Belgium, 25 E.H.R.R. 1, 53 (1997).
[62] Id, citing Lingens v. Austria, 8 E.H.R.R. 407, 419 (1986);
Oberschlick, 19 E.H.R.R. 389, 422 (1991).
[63] Id, citing De Haes at 53.
[64] Id at 625, citing Fressoz v. France, 31 E.H.R.R. 28, 45 (1999).
[65] Id, citing Tromso v. Norway, 29 E.H.R.R. 125, 157; Thorgeirson v.
Iceland, 14 E.H.R.R. 843, 863-65 (1992).
[66] Id.
[67] Id at 626.
[68] Id at 627.
[69] Id at 626.
[70] Loutchansky v. Times Newspapers Ltd. (No. 4) and (No. 6), (2001)
E.M.L.R. 38 and (2002) E.W.H.C. 2490. The claimant was barred as an
undesirable from entering the United Kingdom, but in the peculiar English
way of doing things was allowed to enter for the purpose of suing a
newspaper for libel. Other cases denying the public interest privilege
include Grobelaar v. News Group Newspapers Ltd., (2001) All E.R. 437; James
Gilbert Ltd. v. MGN Ltd., (2000) E.W.L.R. 680; Baldwin v. Rusbridger,
(2001) E.M.L.R. 47.
[71] Al-Faghi v. H.H. Saudi Research and Marketing (U.K.) Ltd., (2002)
E.M.L.R. 13. Other cases in which privilege attached include G.K.R. Karate
Ltd. v. Yorkshire Post Newspapers Ltd. (No. 2), (2000) E.M.L.R. 410;
Lukowiak v. Unidad Editorial SA, (2001) E.M.L.R. 46.
[72] Quebec adheres to civil law, but its defamation law also imposes
strict liability.
[73] Leenen v. Canadian Broadcasting Corp., 105 O.T.C. 91, para 37 (2000)
(Cunningham, J.) (internal quotations omitted), quoting Raymond E. Brown,
THE LAW OF DEFAMATION 1-2 (1999 Release 2).
[74] Cameron at 42.
[75] Hill at 1146-47.
[76] See transcripts of television and Globe and Mail stories in
appendices to Hill.
[77] Hill at 1153-55. The figures are in Canadian dollars.
[78] Wendy Darroch, Scientologists pay giant libel debt on time, Toronto
Star, Sept. 2, 1995. Between 1974 and 1976 the church planted 12 of its
members as employees of the Royal Canadian Mounted Police which was
investigating the church for fraud. The church and three of its members
were fined by a court for breach of trust for spying on police. Theft
charges were dismissed after the judge ruled police illegally seized
documents in the raid. See Scientology chapter, 3 members convicted,
Toronto Star, June 26, 1992; Conviction 'frightening' for religion, lawyers
says, Toronto Star, June 29, 1992; Scientology fined $250,000 for spying on
police, Toronto Star, Sept. 12, 1992.
[79] (1986) 2 S.C.R. 573.
[80] Id.
[81] Hill at 1213-14 (L'Heureux-Dube, J. concurring).
[82] That the opinion was written by Justice Cory, a highly respected
jurist, makes it all the more troubling. See Cristin Schmitz, The Cory
legacy as 'the voice of the court,' Lawyers Weekly, July 23, 1999.
[83] Hill at 1162.
[84] Tom Onyshko, AG told to release information on legal fees paid on
Hill suit, Lawyers Weekly, June 3, 1994.
[85] Hill at 1163.
[86] Id at 1171.
[87] Id at 1204.
[88] Id.
[89] Id at 1204-05.
[90] Id at 1207.
[91] Gatley on Libel and Slander, sect. 9.13 (10th ed. 2004).
[92] Hill at 1207.
[93] Id at 1210.
[94] Id.
[95] Snyder v. Montreal Gazette Ltd., (1988) 1 S.C.R. 494.
[96] Hill at 1201.
[97] Hill is currently a justice of the Superior Court of Ontario.
[98] Hill at 1196.
[99] Id at 1197, citing Andrews v. Grand & Toy Alberta Ltd., (1975) 2
S.C.R. 229; Arnold v. Teno, (1978) 2 S.C.R. 287; Thornton v. Board of
Trustees of School Dist. No. 57, (1978) 2 S.C.R. 267. If it applied the
principles of those cases, the court said the award of general damages in
Hill would have been $250,000 instead of $300,000.
[100] Id at 1202.
[101] Id at 1198.
[102] Id.
[103] Id at 1198.
[104] Craig Harper, Ontario lawyer awarded $700,000 for libel, Lawyers
Weekly, Aug. 23, 1996.
[105] Botiuk v. Toronto Free Press Publications Ltd., (1995) 3 S.C.R. 3.
[106] Hodgson v. Canadian Newspapers Company Ltd., 49 O.R. 3d 661 (2000).
[107] Leenen v. Canadian Broadcasting Corp., 105 O.T.C. 91 (2000)
[108] Myers v. Canadian Broadcasting Corp., 54 O.R. 3d 626 (2001).
[109] Hodgson v. Canadian Newspapers Company Ltd., 65 O.R.3d 626 (2003).
[110] Leenen v. Canadian Broadcasting Corp., 54 O.R.3d 612 (2001).
[111] Young v. Toronto Star, 66 O.R.3d 170 (2003).
[112] 2003 ON.C. LEXIS 4452.
[113] Hill at 1180.
[114] Former Prime Minister Brian Mulroney sued for libel after an officer
of the Royal Canadian Mounted Police leaked a false accusation that he had
engaged in criminal activity in connection with the purchase by Air Canada
of aircraft from Airbus. The government settled the suit by apologizing to
Mulroney and paying his legal and public relations expenses of $2 million.
Revenge: Ottawa folds its cards and apologizes to Mulroney, Maclean's, Jan.
20, 1997.
[115] Stopforth v. Goyer, 97 D.L.R.3d 369 (Ont.C.A. 1979); Parlett v.
Robinson, 30 D.L.R.4th 247 (B.C.C.A. 1986).
[116] 360 U.S. 564, 571 (1959).
[117] Hill at 1181-82.
[118] 314 U.S. 252 (1941).
[119] 307 Ill. 595 (1923).
[120] Sullivan at 273, 277.
[121] Hill at 1182-83.
[122] Lord Jeffrey Archer, a Conservative Party leader in parliament and
best-selling novelist, and Jonathan Aitken, a Conservative cabinet member,
served prison terms for lying in libel cases. The Fall of Jeffrey Archer:
Peer, Perjurer, Prisoner, Independent, July 20, 2001; Kim Sengupta, The
Aitken Affair: The Tory high-flyer impaled on the sword of truth,
Independent, Jan. 20, 1999.
[123] Jimmy Cairns, a former deputy prime minister of Australia, has
admitted that he lied in a libel suit. Louise Milligan, Cairns tell-all
could be costly, Weekend Australian, Sept. 21, 2002.
[124] Hill at 1182-83.
[125] The court cited Randall Bezanson, Libel Law and the Realities of
Litigation: Setting the Record Straight, 71 Iowa L.Rev. 226, 227 (1985).
[126] Hill at 1183.
[127] Id.
[128] Id.
[129] Id at 1184.
[130] Harte-Hanks Communications, Inc. v. Connaughtion, 491 U.S. 657 (1989).
[131] Curtis Pub. Co. at 155.
[132] Hill at 1187-88.
[133] Sect. 2(b).
[134] Rob Martin, S.C.C. buries libel chill with Hill case, Lawyers
Weekly, Aug. 18, 1995; Jeffrey Miller, Hill v. Scientology: Between the
Lines, Lawyers Weekly, Sept. 1, 1995.
[135] 101 C.R.R.2d 189 (2002) (NSCA).
[136] Leenen v. Canadian Broadcasting Corporation, 105 O.T.C. 91 (2000),
aff'd 54 O.R.3d 612 (CA). A medical colleague also received a large
damages award.
[137] Id at para 114-119.
[138] Id at para 118.
[139] 66 O.R.3d 170 (2003).
[140] Id para 186, 188.
[141] Id at 188.
[142] Jones at para 3-14.
[143] Campbell v. Jones, 197 N.S.R.2d 212 (2001). Campbell also sued news
media outlets. They settled for $14,500.
[144] Jones, 101 C.R.R.2d 189 at para 70.
[145] Id at para 72.
[146] Id at para 62.
[147] 80 C.R.R.2d 107 (2000).
[148] Id at para 54.
[149] United Kingdom, India, South Africa, Australia and New Zealand.
Along with Canada, Ireland, Israel, Malaysia and Singapore continue to
adhere to strict liability with its presumption of falsity.
[150] Rajagopal at 275.
[151] Id.
[152] 1999 1 B.C.L.R. 1 (1998) (SCA).
[153] Id at 30, quoting South Africa v. "Sunday Times" Newspaper, 1995 (2)
S.A. 22 (T).
[154] Id at 37.
[155] Id 42.
[156] Id at 42-43.
[157] Id at 51.
[158] Khumalo v. Holomisa, 2002 (8) B.C.L.R. 771 (CC).
[159] Theophanous v. Herald Weekly Times Ltd., 182 C.L.R. 104 (1994) (HC);
Stephens v. West Australian Newspapers Ltd., 182 C.L.R. 211 (1994) (HC).
[160] 189 C.L.R. 520 (1997) (HC).
[161] Id at para 69.
[162] Popovic v. Herald & Weekly Times, (2002) V.S.C. 174.
[163] Cock v. Hughes, (2000) W.A.S.C. 108.
[164] McMullen v. T.C.N. Channel Nine Pty Ltd., (2000) N.S.W.S.C. 925.
[165] Nationwide News Pty Ltd. v. International Financing and Investment
Pty Ltd., (1999) W.A.S.C.A. 95.
[166] Lam v. Nationwide News Pty. Ltd., (2000) N.S.W.S.C. 925.
[167] Lange v. Atkinson, (1998) 3 N.Z.L.R. 424 (CA); (2000) 1 N.Z.L.R. 257
(Privy Council); (2000) 3 N.Z.L.R. 385 (CA).
[168] Lange, (2000) 3 N.Z.L.R. at para 38.
[169] Id at para 13.
[170] Id at para 46.
[171] (2000) N.Z.C.A. 338.
[172] Id at para 17.
[173] Id.
[174] Hill at para 195.
[175] Law enforcement agencies in Canada have a penchant for
heavy-handedness. See, e.g., Bruce Garvey, RCMP raids on reporter's home,
office spark wave of protest, National Post, Jan. 22, 2004.
[176] Sullivan at 270, 273.
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