Changes in the Law of Libel Are Coming!

by Julian Porter, Q.C.

Canada’s law of libel has evolved following British precedent. There are some variations but Gatley’s Law of Libel and Slander with its reliance on British cases has been a major reference in our courts.

Late this year the U.K’s new Defamation Act will erase much of the past law of libel in the U.K.

Under the new Act plaintiff corporations will now be faced with a novel and huge preliminary hurdle. The test for the continuation of a corporate plaintiff’s libel suit is that the libel must cause the corporation “serious financial loss”. The balance sheet will be the focus.

In the particulars of the claim the corporation must set out what the loss is. The defendant will insist on details of those losses before pleading. This will make it very difficult for a corporation to sue for defamation.

Fair comment, a broad and powerful defence, has also been changed. In the past the comment had to modify a true fact known to the speaker at the time of the comment. Now it appears that the speaker need not know of the ‘true fact’ at the time of speaking if the fact is discovered later. Malice, which was a tool used to chip away at fair comment, used to have many facets. Now the defence of fair comment “is defeated if the claimant shows that the defendant did not hold the opinion”. Up to now there have been a litany of arguments alleging malice, now only one. This will be difficult to prove. A big change.

Jury trials have been eliminated unless you can persuade a judge to allow a jury. They used to be the bedrock of libel cases.

The U.K. is making it more difficult for foreigners to sue there. England and Wales must be “clearly the most appropriate place in which to bring an action in respect of the statement”. This will make it difficult for a person to sue a U.S. publication read in England if the American circulation is larger than the U.K. readership. A huge change, stomping on libel tourism.

The U.K. will soon establish a tribunal to adjudicate newspaper libels. The tribunal will have vast powers and will take over from the courts. Newspapers that don’t agree with the tribunal’s jurisdiction could suffer large penalties. This change is breathtaking.

Ontario is in the mood for a whopping change as well. The Attorney General has introduced Bill 83, Protection of Public Participation Act, 2013 to be voted on in the fall if the government is still in charge. The NDP introduced its own Bill in 2012 which was quite similar. The Bill got its impetus from developers suing citizens who criticized proposed development plans. They were viewed as bullies scaring citizens who raised valid objections.

This Bill has no borders and applies, as I see it, to anything that is expression, viz:

173.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

173.1 (2) In this section, “expression” means any communication regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

There is no definition or restriction on the phrase “public interest”. Pretty well anything other than tittle-tattle or bad taste can fall within “public interest”.

A defendant in a libel action can bring a motion before a judge. The Act sets out that the motion is to be heard within 60 days! Today a simple motion for less than two hours would be heard after four months, maybe longer.

173.1 (3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

173.1 (4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that:

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

A judge can award full costs and damages against the plaintiff if the court finds that the proceedings were brought in bad faith or for an improper purpose.

Wow! Wars are about to begin! Load your guns!