Free Expression and Private Rights

• Author: Robert Martin
• Profession: Faculty of Law The University of Western Ontario
• Pages: 143-216

So far we have looked at limitations on freedom of expression which

are imposed by the state to further some state purpose. In this chapter

we change the focus, at least somewhat. Although the limitations we

will look at arise out of the law of the state, they exist as means where-

by individuals can enforce private rights against other individuals.

The difficult task confonting the courts in libel actions is to find an

appropriate and socially acceptable means of balancing the competing

interests of freedom of expression and the protection of the reputations

of individuals. Frederick Schauer, a leading US commentator on libel,

put the matter this way

… The law of defamation in a society reflects … the assumptions of

that society respecting the relative importance of an untarnished rep-

utation, on the one hand, and an uninhbited press on the other.1

We will spend the bulk of the chapter investigating the law of civil libel

and then analyse the extent, if any, to which an individual right to pri-

vacy is recognized.

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Free Expression and

Private Rights

chapter 4

1 F. Schauer, “Social Foundations of the Law of Defamation: A Comparative

Analysis,” (1980) 1 (3): 3 Journal of Media Law and Practice 19. For a Canadian

view of these matters see Denis W. Boivin, “Accomodating Freedom of Expres-

sion and Reputation in the Common Law of Defamation,” (1996) 22 Queen’s

Law Journal 229.

A. Civil Libel

In the Canadian legal system there is both civil libel and criminal libel.

We have already noted the three forms of criminal libel (see chapter 2

(C) p. 69). The law of civil libel is part of the law of torts. Torts address-

es civil wrongs, or, to put it slightly differently, non-criminal injuries.

By and large the law of torts consists of legal mechanisms whereby peo-

ple can seek redress for losses they have suffered as a result of the

unlawful conduct of others. In a practical sense, the law of torts today

is very much the law of car accidents.

The English law of torts is called torts with an “s” for a reason.

There is a series of different torts, each of which has different rules and

its own complexities. This is especially true of libel, which is a compli-

cated business and often difficult to understand. It is also a matter

about which most lawyers do not know a great deal, for the simple rea-

son that libel actions are not common.

What are the effects on individual journalists of being involved in

a libel action? Many lawyers would regard publishing a contempt of

court as a far more serious matter than publishing a libel, but from the

perspective of an individual reporter or editor the reverse may be true.

Few things do more to ruin a journalist’s reputation than to write sto-

ries that lead to libel actions, especially libel actions that employers

lose. The journalist gets a reputation as someone who is not thorough,

who is sloppy, who is inaccurate, and so on. Libel can have exceeding-

ly serious consequences for the career of a journalist.

Traditionally, the broad tort we are dealing with has been called

defamation.

Defamation is an unusual and unique tort. It is unique in that the

behaviour of the tortfeasor, exercising freedom of expression, is both

socially desirable and constitutionally protected.2

It should be stressed that, despite widespread popular belief in its

existence, there is no such thing as “defamation of character.”

Defamation was subdivided into two further categories called slan-

der and libel. In the traditional definition, slander consisted of purely

spoken words — words that emerged from someone’s mouth, but were

never reduced to any other form; libel, in contrast, was said to consist

of written or printed words. That distinction has been overtaken by

technological change. Although slander still means purely spoken

words, libel embraces words or images that have been reduced to a per-

144 Media Law

2 This idea comes from discussions with a former student, John Simpson.

manent or potentially permanent form. Permanent or potentially per-

manent form includes not only written or printed words but material

on film (both movie film and still film), audiotape, videotape, comput-

er disks, and hard drives. Quite different rules govern libel actions and

slander actions. We will say nothing more about slander as such,

because anyone can slander anyone else and the tort is thus of no par-

ticular interest to journalists.

Some of the common law provinces — Manitoba, for example —

have abolished the distinction between libel and slander and simply

have one tort called defamation. Other common law provinces, such as

Ontario, maintain the distinction. Henceforth we will deal purely with

libel, although the words “libel” and “defamation,” or “libellous” and

“defamatory,” may be used as if they were interchangeable.

Two broad introductory points must be made about libel law. The

first is that it applies to everything that a newspaper or broadcaster

publishes, publish being used in the widest possible sense. With news-

papers for example, the law of libel applies not only to news stories or

editorial columns, but to literally everything that is in the newspaper.

It applies to letters to the editor, to editorial cartoons, to classified

advertisements. It applies to material that comes from sources outside

the paper — wire stories, syndicated columns, and syndicated features.

The law of libel can even apply to the way a newspaper is laid out. If

someone puts the wrong cut line on a photograph, he may have there-

by created a libel. You might have a story that is perfectly harmless and

a head that is also perfectly accurate and harmless, but the way the

page is laid out may create a libellous impression. Let us say there is a

story on page one about a pillar of the community, loved, honoured,

and respected and, in particular, the retirement dinner held to honour

this noble human being. There is an accompanying photograph of this

person. On the same page, with a much bigger head, there is a story

about a convicted child molester. The page is, unfortunately, laid out so

that the huge head about the molester looks as if it refers to the photo-

graph depicting the pillar of the community. That is a libel. Even

though each constituent element on the page, viewed independently of

every other element, may be fine, the way the whole page has been put

together can create an impression that is libellous. The same principle,

slightly amended, applies to television. The words in a script may be

absolutely innocent and no libellous imputation would be conveyed to

anyone who read those words to himself. But the announcer who actu-

ally reads the script over the air may deliver it in a tone of voice that

creates a libel. The visuals, or the music that is used, or the back-

ground, or the way different parts of a television story have been edit-

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