Damages in Cyberlibel

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 179-199

179

 : Damages in Cyberlibel

A. GENERAL PRINCIPLE S

General damages i n libel are designed to compensate plaintis for the d am-

age to their reputations and to vindicate their good names. ey include

damages for the actual monetary consequences of the attitude adopted by

other persons toward the plainti as a result of the defamatory publication,

as well as damages for distress, hur t, and humiliation caused to the plainti.

Hill v. Church of Scientology of Toronto,[] S.C. R.  at 

Damages for libel are “at large” in the sense that there is a presumption of

damage on proof of publication and there is no cap on general damages as for

other personal injury claims .

Leenen v. CBC (),  O.R. (d)  at para.  (S.C.J.), a ’d (),  O.R. (d)

 (C.A.)

Munro v. Toronto Sun Publishing Corp. (),  C.C.L.T.  at  (Ont. H.C.)

e Supreme Court of Canada in Hill v. Church of Scientology of Toronto

stated that each libel case is unique, that there is no formula for determining

damages, and that reliance on previous ca ses is of limited value.

Hill v. Church of Scientology of Toronto, []  S.C.R. ,  D.L.R. (th) 

See Chapter  on d amages in Roger D. McConchie and David A. Potts,

Canadian Libel and Slander Actions (Toronto: Irwi n Law, ) for a more

detailed exami nation of the subject of damages in libel.

180Cyberlibel: Information Warfare in the st Century?

B. FACTORS TO BE CONSIDERED IN AWARDING GENERAL

DAMAGES

When awarding general damages, a list of the factors ta ken into account

by t he courts were enumerated in Leenenv.Canadian Broadcasting Corp.

(),  O.R. ( d)  at para.  (S.C.J.), a ’d (),  O.R. (d) 

(C.A.), leave to appeal to S.C.C. refused, [] S.C.C.A. No. , Cunning-

ham J., cited in Roger D. McConchie and David A. Potts, Canadian Libel and

Slander Actions (Toronto: Irwin Law, ) at pages –:

a) the seriousness of the defa matory statement;

b) the identity of the accuser;

c) the breadth of distr ibution of the publication of the libel;

d) republication of the libel;

e) the failure to give t he audience both sides of the picture and not pre-

senting a balanced rev iew;

f) the desire to increase one’s professional reputation or to increase r atings

of a particula r program;

g) the conduct of the defendant and defendant’s counsel through to the end

of trial;

h) the absence or refusal of any retraction or apolog y; and

i) the failure to establ ish a plea of justication.

e phrase “at large” was discussed by Lord Hai lsham in Cassell & C o. v.

Broome,[]  All E.R.  at  (H.L.), cited in Roger D. McConchie and

David A. Potts, Canadian Libel and Slander Actions (Toronto: Irw in Law, )

at page :

is is why it is not necessarily fair to compare awards of damages in this eld

with damages for personal injurie s. Quite obviously, the award must include

factors for injur y to the feelings , the anxiet y and uncertai nty undergone in

the litigation, the absence of apolog y, or the rearmation of the t ruth of the

matters complai ned of, or the malice of t he defendant. e bad conduct of

the plainti  himself may also enter into the matter, where he has provoked

the libel, or w here perhaps he has libel led the defendant in reply. Wh at is

awarded is t hus a gure which cannot be arrived at by any purely objective

computation. is is what is meant when the damages in defamation are de-

scribed as being “at large.” In a sense, too, the se damages are of their nature

punitive or exemplary in the loose sense in which the terms were used before

, because they inict an added burden on the defendant proportion-

ate to his conduct , just as they ca n be reduced if the defendant has behaved