Defamation Law in the Internet Age, a Consultation Paper

Some Key Points

Ontario defamation law has developed primarily through common law supplemented by the Libel and Slander Act (LSA).The elements of the tort are substantially similar in most common law jurisdictions with the exception of the United States. In order to make out a claim of defamation, a plaintiff must establish three things:

  • that the words in issue refer to the plaintiff;

  • that they were published to a third party; and

  • that they are defamatory in the sense that they tend to lower the plaintiff’s reputation among reasonable persons in the community.

    Where these elements are made out, the law presumes that the words are false and that they caused the plaintiff harm. A finding of fault is not necessary in order to establish defamation.

 

A 1985 Report of the British Columbia Law Institute (BCLI) relied on the ULCC Report in recommending a new draft Defamation Act for that province. However, no legislative reform followed.

 


Also, in recent years Canadian courts have been interpreting defamation law to better protect the Charter right to freedom of speech and to address internet communications. In WIC Radio v. Simpson [2008], the SCC reformulated the fair comment defence to protect a radio broadcast comparing an anti-gay activist to Hitler. In Grant v. Torstar [2009], the Court created a new defence of responsible communication to protect defamatory communications made responsibly in the public interest. The Court noted the changing context brought about by the internet, suggesting that the law must adapt accordingly:

...many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media.


 


ii. Facilitating the Search for the Truth

Freedom of expression can also be justified as an essential component of the “marketplace of ideas” – the notion that unfettered competition between ideas promotes the broader societal goal of understanding truth.96 The search for truth is understood to be a process rather than an outcome and the value of freedom of expression is not dependent on the truth of the expression. Even wrong opinions result in “the clearer perception and livelier impression of truth, produced by its collision with error.” The marketplace of ideas rationale has been widely adopted in modern legal systems, including the Supreme Court of Canada, and remains a central justification for protecting expressive activities from state interference.

iii. Promoting Democratic Discourse

Freedom of expression is also viewed as valuable because it promotes the “free flow of ideas essential to political democracy and the functioning of political institutions”. This rationale manifests itself in two ways. First, freedom of expression allows government policy and action to be vigorously discussed and debated, thereby enhancing accountability. Second – and linked to the “marketplace of ideas” theory – freedom of expression fosters open competition between different political visions of the state, furthering the goal of having only the best “rise to the top”.

Two of these freedom of expression values, the search for truth and democratic discourse, have been front and center in the Supreme Court of Canada’s defamation jurisprudence. However, the value of individual self-fulfillment has been less emphasized in the defamation context because,“the plaintiff’s interest in reputation may be just as worthy of protection as the defendant’s interest in self-realization through unfettered expression.”


Ed:
These two are intertwined, the first because of Yaniv's attempt to pursue vexatious litigation —which is nothing more and nothing less than persecution of classes a misogynist bully would target— against a multitude of persons intent upon forcing deranged worldview upon society. Yaniv seeks to force the strong to submit to a deviant world-view through the establishment of a common-law rubric derived from belittling those unable to offer proper defence to the advances of the Yaniv.

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