H. Protection of Reputation

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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An individual’s reputation enjoys the protection of law. Statements that defame and injure reputation may give rise to a civil right of action for libel or slander, permitting the targeted individual to claim damages for the injury to reputation. The law of libel is notoriously complex and difficult but essentially provides that, where the defendant publishes a statement injurious to the plaintiff’s reputation, damages are recoverable. While certain defences are available, including the truth of the statement complained of, it is for the defendant to prove a defence, failing which damages are presumed. In recent years, Canadian juries have been willing to award substantial damages, both compensatory and punitive.

Here again, a laudable and important objective is said to require limiting the rights of freedom of expression and freedom of the press. Canadian law makes no distinction between private and public figures. The press must observe the same strict requirements when describing the activities of political and public figures as apply to ordinary citizens. The presumption of falsity means that any time the press makes a statement that might injure reputation, it must be able to prove the truth of what it has said according to the exacting standards of a court of law. Honest belief in the truth of the statement provides no defence, nor does absence of malice or negligence in the writing of the story. The press must, therefore, be more than cautious in what it says: it must be right. Journalists have to avoid publishing stories, even on matters of

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immediate public interest and concern, unless they are confident that the truth of statements capable of injuring reputation can be proved.

The Supreme Court of Canada and the courts of England,104the United States,105Australia106and New Zealand107have taken distinctive paths in modifying the common law of defamation to accord significantly more weight to freedom of expression.108The Supreme Court of Canada was initially reluctant to take this step. In Hill v Church of Scientology of Toronto,109it was asked to reconsider the common law of defamation, particularly the presumptions of falsity and damage, in light of the Charter protection of freedom of expression. The plaintiff, a Crown attorney, sued after a lawyer for the Church of Scientology publicly announced that his client intended to take proceedings alleging the Crown attorney had breached an order of the court. These allegations proved to be without foundation, and the jury awarded over one million dollars in damages. As explained in Chapter 6, the Charter does not apply directly to the common law in such circumstances. While the...

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