B. The General Framework of the Tort of Defamation

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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The tort of defamation balances the interest of individuals in their reputation with the public interest in free and unfettered speech in an unusual way. The courts have chosen a low threshold for the establishment by the plaintiff of a prima facie cause of action in defamation. Any communication that would cause the plaintiff to lose respect or esteem in the eyes of others is likely to be held to be defamatory. Consequently, 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 programs, radio talk shows, political discourse, and the casual conversations of Canadians contain many statements that impair the reputation of others and diminish the esteem in which persons are held by others. The balance in favour of free speech is restored by a number of defences. These defences are designed to permit the vigorous exchange of information, ideas, criticism, and views that are essential in a modern democracy. One or more of the defences is usually central to most defamation litigation and they are pivotal in drawing an appropriate balance between the competing values of reputation and free speech. This framework does, however, tend to load the dice in favour of the plaintiff and the protection of reputation because the defendant carries the burden of proving some justification or privilege to legitimize his defamatory statement.

It may also be noted that defamation is a difficult and technical area of the Canadian law of torts. In part, this is due to the immense diversity of speakers, meanings, and contexts of spoken and written words and the difficulty of drawing an appropriate balance between reputation and free speech, and in part it is due to the early entrenchment of some legal principles that do not operate easily or well in modern conditions, to the interplay among ancient common law principles, to the relationship between the common law and reforming provincial legislation,6to

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complex rules of procedure, and to the division of tasks between judge and jury. Only the general principles, concepts, and themes of defamation law are canvassed here.7

[6] All Canadian provinces have defamation acts: see Alberta Defamation Act, R.S.A 2000, c. D-7; British Columbia Libel and Slander Act, R.S.B.C. 1996, c. 263; Manitoba Defamation Act, R.S.M. 1987, c. D20; New Brunswick...

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