Defamation

• Author: Philip H. Osborne
• Pages: 367-388

A. Introduction

The interest of persons in protecting their good reputations was recog-

nized early in the development of the common law and it continues to

receive strong protection under the tort of defamation. This is in

marked contrast to the response of tort law to most other intangible

personal interests. Tort law has been very slow, for example, in devel-

oping remedies for breach of privacy, harassment, and emotional dis-

tress, and it has “passed” on the issue of discrimination. There are a

number of reasons why reputation is one of the few dignitary interests

that has received special protection.1Some are historical. The invention

of the printing press prompted the development in the common law of

strong criminal and civil laws to combat seditious and blasphemous

libel,2which was perceived as a serious threat to the public order and

to the Crown.3The high value placed on reputation by the English elite

classes and the desire to minimize violence, particularly by duelling, as

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Defamation

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1 Battery, assault, and private nuisance protect dignitary interests to some degree.

2 At common law, defamation was actionable as libel (written defamation) and

slander (verbal defamation). The extent to which this dichotomy remains in the

Canadian law of defamation is dealt with later in this chapter.

3 J.G. Fleming, An Introduction to the Law of Torts, 2d ed. (Oxford: Oxford Univer-

sity Press, 1985) at 196. Libel continues to be a crime in Canada: see Criminal

Code, R.S.C. 1985, c. C-46, ss. 296–300.

a means of defending one’s honour were also factors. Canadian judges

have maintained the high priority that has traditionally been given to

the protection of reputation. This is explained in part by the pivotal

role of reputation in the achievement and maintenance of personal sta-

tus, prestige, and power, by the sensitivity of judges to the importance

of personal reputation in their own professional careers, by the exten-

sive economic damage that can be generated by an attack on a person’s

reputation, by the power of modern systems of mass communication to

disseminate defamatory statements to vast numbers of persons, and by

the need to encourage persons of integrity to enter and continue in

public service. There is indeed little debate in Canada about the value

of protecting the reputation of its citizens. Yet there is a growing aware-

ness of, and sensitivity to, the fact that the protection of reputation

adversely affects the competing interest in free speech, an interest that

is also highly valued in the common law and is enshrined in the Char-

ter of Rights and Freedoms. Freedom of speech guards against oppres-

sive and abusive governmental actions, protects the free exchange and

testing of political ideas, enhances the efficient operation of the mar-

ketplace, supports a flourishing artistic community, and maximizes the

flow of information essential for individual, social, and political deci-

sion making. Traditionally, defamation law has tended to favour the

protection of reputation at the expense of both the public’s interest in

free speech and a free media. In recent times, this has been called into

question and it has been argued that the balance drawn by defamation

between the competing values of individual reputation and free speech

is in need of some readjustment in favour of the latter. To date there

has, however, been little change in conventional principles.

B. The General Framework of the Tort

of Defamation

The tort of defamation balances the interest of individuals in their rep-

utation with the public interest in free and unfettered speech in an

unusual way. The courts have chosen a low threshold for the establish-

ment by the plaintiff of a prima facie cause of action in defamation. Any

communication that would cause the plaintiff to lose respect or esteem

in the eyes of others is likely to be held to be defamatory. Consequent-

ly, few cases of defamation are fought over whether or not the defen-

dant’s words are defamatory. In itself, this would, of course, be an

intolerable restriction of free speech. The daily newspapers, television

368 The Law of Torts