Defamation

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 385-408

385

CHAP TER 7

DEFA M AT ION

A. INTRODUC TION

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

ognized 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 inta ngible

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

veloping remedies for breach of privacy, harassment, and emotional

distress, and it has “passed” on the issue of discrimin ation. There are a

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

that has received speci al protection.1 Some are historical. The invention

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

strong crimin al and civil laws to combat seditious and blasphemous

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

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

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

1 Battery, assault , and private nuisance protect d ignitary interest s to some degree.

2 At common law, defamation wa s actionable as libel (written def amation) and

slander (verbal defam ation). The extent to which t his dichotomy remains i n the

Canadia n law of defamation is dealt w ith later in this chapter.

3 J.G. Fleming, An Introduction to the L aw of Torts, 2d ed. (Oxford: Oxford Un iver-

sity Press, 1985) at 196. Libel c ontinues to be a crime in Ca nada: see Criminal

Code, R.S.C. 1985, c. C-46, s s. 296–301.

THE LAW OF TORTS386

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

have maintained t he high priority that ha s 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 persona l stat-

us, prestige, and power, by the sensitivity of judges to t he 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 ma ss 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 grow ing aware-

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

versely affects the competing interest in free speech, an interest t hat is

also highly valued in the common law and i s enshrined in the Charter of

Rights and Freedom s. Freedom of speech guards against oppressive and

abusive governmental actions, protects the free exchange and testing

of political ideas, enhances the eff‌icient operation of the marketplace,

supports a f‌lourishing artistic community, and maximizes t he f‌low of

information essenti al for individual, socia l, and political decision mak-

ing. 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, t his has been called into question and

it has been argued that the balance drawn by defamation between the

competing values of i ndividu al reputation and free speec h is in need of

some readjustment in favour of the latter. To date there has, however,

been little change in conventional principles.

B. THE GENERA L FR A MEWORK OF THE TORT

OF DEFAM ATION

The tort of defamation balances the intere st of individuals in t heir

reputation 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 pla intiff to lose respect or

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

sequently, few cases of defamation are fought over whether or not the

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

intolerable restriction of free speech. The daily newspapers, television