Defamation

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 404-428

404

Cha pter 7

DEFA M AT ION

a. IntroDUCtIon

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

ognized early in the development of t he common law and it continues

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

marked contrast to the re sponse of tort law to most other intangible

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

veloping remedies for breach of privacy, harassment, and emotional

distress, and it has “pas sed” 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.1 Some are historical. The invention

of the printing pres s prompted the development in the common law of

strong crimina l and civil laws to combat seditious and blasphemous

libel,2 which was perceived as a serious t hreat 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 di gnitary interest s to some degree.

2 At common law, defamation wa s actionable as libel (written de famation) and

slander (verbal defam ation). The extent to which th is dichotomy remains in t he

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

3 J.G. Fleming, An Introduction to th e Law of Torts, 2d ed. (Oxford: Oxford Un iver-

sity Press , 1985) at 196. Libel continues to be a c rime in Canada: see Crimina l

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

Defamat ion 405

a means of defending one’s honour were also f actors. Canadia n judges

have maintained the high priority that has tr aditionally been given to

the protection of reputation. This is explai ned in part by the pivotal

role of reputation in the protection of personal dignity, status, prestige,

and power; by the sensitivit y of judges to the importance of reputa-

tion in their own professional careers; by the extensive economic harm

that can f‌low from an attack on a person’s reputation; by the power of

modern systems of mass commun ication to disseminate defamatory

statements to large numbers of persons; and by the need to encourage

persons of integr ity to enter and continue in public serv ice. The pro-

tection of reputation does, however, impinge on other highly valued

interests such as free dom of expression and freedom of the press, both

of which are protected by the Charter of Rights and Freedoms. Freedom

of speech guards against oppressive and abusive governmental actions,

protects the free exchange and test ing of political ideas, facilitates a

search for tr uth, en hances the eff‌icient operation of the marketplace,

supports a f‌lourishing artist ic community, and maximi zes the f‌low of

information essential for individual, social, and political decision mak-

ing. It is the foundation of a vibrant and free democracy. Defamation

law strikes a balance between these competing interests. An unduly

assiduous protection of reputation may diminish the f‌low of import-

ant information and may lead news media outlets to be overly cau-

tious in publishing investigative journalism in the public interest.4 An

unduly robust protection of freedom of expression a nd freedom of the

press m ay be very destructive of a person’s hard-e arned and unblem-

ished reputation for integrity and honesty. The law of defamation has

traditionally favoured t he protection of reputation over free-speech in-

terests a nd, to a signif‌icant degree, moder n Can adian def amation law

continues to ref‌lect this bia s. Recently, however, the Supreme Court

has begun a gradual recalibration of defamation law in favour of free

speech. It has been inf‌luenced by reform in other common law jurisdic-

tions and by the failure of traditional doctrine to ref‌lect suff‌iciently the

constitutional recognition of freedom of expression and freedom of the

press in the Charte r.5

4 This phenomenon is know n as “libel chill.”

5 See Grant v. Torstar Corp., [2009] S.C.J. No. 61, and the discussion of t he defence

of responsible com munication on a matter of public intere st in section E(4),

below in thi s chapter.