Defamation

• Author: Philip H. Osborne
• Pages: 427-452

427

CHA PTER 7

DEFA M AT ION

A. INTRODUC TION

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

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

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

marked contrast to the resp onse of tort law to most other intangible

personal interests. Tort law has been ver y 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 speci al protection.1 Some are historical. The invention

of the printing press 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 ser ious threat to the public order and

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

classes and t he desire to minimize violence, part icularly by duelling, as

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

1 Battery, assault , and private nuisance protect dig nitary 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 th is dichotomy remains in t he

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

3 JG Fleming, An Introduction to t he Law of Torts, 2d ed. (Oxford: Oxford Univer-

sity Press, 1985) at 196. Libel cont inues to be a crime in Can ada: see Criminal

Code, RSC 1985, c C-46, s s 296–301.

THE LAW OF TORTS428

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 protection of personal dignity, status, prestige,

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

tion in their own professional c areers; by the extensive economic harm

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

modern systems of mass communication to dissemin ate defamatory

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

persons of integrity to enter and continue in public service. The pro-

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

interests such as freedom of ex pression and freedom of the press, both

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

of speech guards agai nst oppressive and abusive governmental actions,

protects the free exchange and testing of political ideas, facilit ates a

search for truth, enh ances the eff‌icient operation of the marketplace,

supports a f‌lourishing artistic 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 ba lance between these competing interests. An unduly

assiduous protection of reputation may diminish the f‌low of important

information and may lead news media outlets to be overly cautious in

publishing investigative journa lism in the public interest.4 An unduly

robust protection of freedom of expression and freedom of the press

may be very destr uctive of a person’s hard-earned and unblemished

reputation for integrity and honesty. The law of defamation has trad-

itionally favoured the protection of reputation over free-speech inter-

ests and, to a signi f‌icant degree, modern Canadi an defamation law

continues to ref‌lect this bias. Recently, however, the Supreme Court

has begun a gr adual recalibration of defamation law in favour of free

speech. It has been inf‌luenced by reform i n other common law juris-

dictions and by the failure of traditional doctrine to ref‌lect suff‌iciently

the constitutional recognit ion of freedom of expression and freedom of

the press in the Char ter.5

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

5 See Grant v Torstar Corp, [2009] SCJ No 61, and the discussion of the defence of

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

in this ch apter.