Tag: defamation

Les Mal-Famés

Je voudrais commenter brièvement sur la nouvelle qu’une Montréalaise qui s’était opposée à feu le projet péquiste de Charte de la honte dans les médias, Dalila Awada, poursuit certaines personnes et organisations qui, suite à son intervention, l’ont décrite comme associée à des organisations musulmanes, voire une agente d’extrémistes islamistes. Ce faisant, soutient-elle, ils auraient provoqué une vague de harcèlement à son endroit, lui auraient causé du stress et fait perdre des amis. Je ne connais pas vraiment le droit québécois de la diffamation (je présume que le recours de Mme Awada en est un en diffamation, essentiellement), donc je ne dirai rien de ses chances de succès. Par contre, je vais souligner un certain parallèle historique qui me paraît pertinent, surtout à la lumière des (prévisibles) commentaires d’une des personnes visées par la poursuite, Louise Mailloux, cette ex-candidate péquiste, professeure de philosophie de son métier, qui propage dans ses temps libres de viles théories de complot et compare le baptême à un viol.

Selon l’article de La Presse,

Mme Mailloux considère que cette poursuite vise à les réduire au silence. […] «On a décidé d’attaquer sur le plan juridique pour nous réduire au silence, pour nous intimider, nous isoler. Ce qui est en cause ici, c’est la liberté d’expression, la liberté de participer à un débat public», a indiqué Mme Mailloux.

Il y a une ironie amèrement délicieuse à voir Mme Mailloux, qui défend la limitation la plus stricte d’un droit fondamental des autres réclamer pour soi la liberté (d’expression) la plus complète, non-encombrée par des limites que le droit ou la simple décence imposent pour protéger la réputation des personnes, y compris de celles engagées dans des débats publics. Mais au-delà de cette ironie, il faut se rappeler l’importance du droit pour protéger les personnes vulnérables dans des situations où les passions, les préjugés et les peurs de la société sont déchaînés.

L’exemple historique qui nous le rappelle, c’est une décision de la Cour du Banc de la Reine du Québec (devenue depuis la Cour d’appel), Morin c. Ryan, [1957] Q.B. 296 (Qc) (la décision n’est pas disponible en ligne, malheureusement. Je me fie à des notes prises il y a quelques années, dans le cadre d’un projet de recherche). Les années 50 étaient une époque où les communistes étaient, pour les Nord-Américains, y compris les Québécois, ce que sont aujourd’hui les islamistes. C’était l’époque où le Québec avait sa fameuse « Loi du cadenas », à laquelle le projet de Charte de la honte était d’ailleurs semblable à certains égards. Dans ce contexte social trouble, le défendeur avait accusé la demanderesse d’être une communiste militante, et elle l’a poursuivi en diffamation. Ironiquement, le défendeur semble avoir soutenu que le communisme n’était qu’une idéologie comme les autres, et que qualifier quelqu’un de communiste n’était donc pas diffamatoire. Le juge McDougall a reconnu cette possibilité, mais il a statué, aux pp. 297-98, que

having regard to public opinion and in a given territory, it may well be that the word “communist” will connote the Marxist subversive revolutionary type of communism which would be objectionable in any part of Canada. In the present case the evidence is to the effect that communism, at least in the Province of Quebec, means this revolutionary subversive type. … In the circumstances I agree … that the language used by defendant is defamatory.

(Le juge Hyde était du même avis, p. 300.) La Cour a donné raison à la demanderesse, condamnant le défendeur à lui payer 500$ à titre de dommages moraux.

Cette poursuite était-elle un moyen de réduire au silence un honnête citoyen préoccupé par la subversion communiste? Ou était-elle plutôt, comme l’a dit F.R. Scott (dans un article intitulé, “The Bill of Rights and Quebec Law”, dans Essays on the Constitution: aspects of Canadian law and politics (Toronto: University of Toronto Press, 1977) 325 à la p. 328), « a healthy check on incipient McCarthysm [sic] »? Selon moi, c’est Scott qui avait raison. Et, face au Maccarthysme renouvelé que d’aucuns voudraient nous faire vivre au Québec, le droit civil n’a pas perdu son importance. Certes, le débat public doit rester vigoureux, et peut à l’occasion être blessant pour des personnes dont les opinions y sont malmenées. Cependant, les attaques qui visent non plus les opinions, mais sur les personnes et, surtout, lorsqu’elles le font à coups de mensonges ou d’insinuations non-fondées, elles ne contribuent plus au débat public. Au contraire, elles en érodent la qualité, notamment en dissuadant ceux qui auraient quelque chose à y contribuer d’y prendre part.

Quel que puisse être le résultat de la poursuite de Mme Awada, ce n’est pas elle, mais bien Mme Mailloux et ses semblables qui font de l’intimidation et tentent de réduire ceux qui sont en désaccord avec eux au silence. Ce sont eux, et non Mme Awada, qui méritent d’être mal-famés.

All Quiet on the Western Front

The confrontation between freedom of expression and protection of individual reputation by the law of defamation is as good an example of interminable global legal trench warfare as any. (Well, except in the United States, where one battle proved largely decisive in favour of free speech.) In Canada, freedom of expression has made some gains since the entrenchment of the Canadian Charter of Rights and Freedoms, but the protection of reputation has proven quite resilient, even scoring a rhetorical victory of its own when the Supreme Court dubbed it a “quasi-constitutional” right ― whatever that means ― last year in Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636. Another battle of this war was recently fought in British Columbia, where the province’s Supreme Court, in Northwest Organics, Limited Partnership v. Maguire, 2013 BCSC 1328  rejected an attempt by defendants to impose additional burdens on plaintiffs for their defamation lawsuits to go forward.

The plaintiffs in Northwest Organics are a group of companies developing a composting facility. The defendants are a group of concerned local residents and activists, who have been campaigning against the building of the facility. The plaintiffs say the reports, pamphlets, and internet materials they have distributed as part of that campaign are defamatory. The defendants say the suit against them is a SLAPP ― strategic litigation against public participation ― intended to silence them.

The defendants sought to have the action dismissed, notably by asking that the Court apply a new test to defamation actions in which the defendant claims there is no genuine issue to be tried. In such cases, the defendants argued, interpreting the rules of civil procedure or the inherent powers of the court in accordance with the Charter value of freedom of expression should lead courts to require plaintiffs to show that the action is worth pursuing, despite the chilling effect it will have on the defendants’ freedom of expression, instead of defendants having to demonstrate that the case is frivolous or that there is no genuine issue to be tried (as is normally the case when a defendant seeks to have an action against dismissed). Plaintiffs could discharge this burden by showing that their claim “(a) is to compensate a significant injury to reputation; (b) has a significant likelihood of success, and (c) is the only practicable response to the alleged defamatory speech” (par. 28), a requirement which the defendants later abandoned.

Justice Savage refused to interpret the Supreme Court Civil Rules or the court’s inherent power in this way. Although, as all parties accepted, they had indeed to be interpreted in accordance with Charter values, such interpretation could not have the effect of changing substantive law. The Rules were enacted pursuant to a delegation of power to make rules with respect to procedure and evidence. A provision that dealt with substantive law would be ultra vires. Similarly, the superior courts’ inherent jurisdiction is meant to safeguard the integrity of the judicial process, but cannot be used to change substantive law. And that is precisely what the defendants were asking the court to do:

… [T]he defendants are proposing a substantive change to the law of defamation, not simply a change in the rules of civil practice. The substantive law, as it now stands, is that once the plaintiff commences its claim by asserting the publication of a defamatory statement, the onus shifts to the defendant to prove truth, to prove fair comment, to prove qualified privilege or to prove responsible publication. If the defendant pleads fair comment, then the burden lies on the plaintiff to prove malice. What the defendants are proposing are not changes to procedural rules that would apply only in the case of SLAPP lawsuits, but changes to the substantive law of defamation that go to the merits of those claims. (Par. 76).

In reality, the defendants seek to get rid of the presumptions of falsity and damage that have been part of the common law of defamation for centuries. “This,” says Justice Savage, “is not so much an incremental change to the common law as a wholesale change, something normally undertaken by the legislature or by higher courts with a full evidentiary record” (par. 80). It is too much for a court to read into the rules of procedure, and in the context of a motion without a full factual record to boot.

I think that Justice Savage is absolutely right. The presumptions that any person deserves a good reputation and is deprived of that right by defamatory publications are crucial to the way in which the law protects reputation ― a “quasi-constitutional” right, according to the Supreme Court’s latest pronouncement on the issue. To get rid of them, or to allow defendants to circumvent them by shouting “SLAPP!”, would effectively destroy the law of defamation ― an outcome which the Supreme Court has diligently (if not always elegantly) laboured to avoid. Indeed, one wonders if it is not precisely because they know this that the defendants here have sought to disguise frontal attack on the law of defamation as a mere procedural skirmish.

The law of defamation survives to fight another battle. But the grinding war between freedom of expression and the protection of reputations is certain to go on.

Hate Speech and Group Libel

As I promised yesterday, I want to share a few thoughts on some arguments that Jeremy Waldron makes in The Harm in Hate Speech, his book making the case for criminalizing hate speech. (Prof. Waldron’s Holmes Lectures, from which the book grew, were published in the Harvard Law review, and are available here.) I will address the main arguments of chapters 3, 4, and 5 of the book, which are, respectively, that “hate speech” should be understood as a form of group libel, that criminalizing it serves to give members of minority groups the assurance that they will be treated as equal citizens, and that while aiming at denials of dignity, the criminalization of hate speech does not and should not protect from offence. For the sake of readability, I will devote a separate post to each of these claims. This one deals with the equation of hate speech and group libel.

“Hate speech” is a notoriously slippery phrase. But, says prof. Waldron, we can go back to a different one, that was used, for example, in Beauharnais v. Illinois, 343 U.S. 252 (1952), to understand what we really ought to get rid of: “group libel.” What we want to get at are  written statements denigrating members of certain groups qua members of groups in ways that make them appear unworthy of the dignity of citizenship or, perhaps, more broadly, membership in society. Just as defamation law generally is concerned with unjustified deprivations of reputation inflicted on individuals by a falsehoods that tend to lower them in the estimation of right-thinking people, group libel is concerned with deprivations of reputation inflicted on individuals―not groups―but by making their membership in certain groups appear to make them unworthy of citizenship. And while a person can only recover damages in a civil defamation suit if he or she is identifiable as the target of a defamatory statement, criminal prosecution of group libel does not require any specific person to be targeted, because the state can justly take up the cause of all the members of the targeted group.

But there are several problems with prof. Waldron’s attempt to tie the prohibition on hate speech with the law of libel. For one thing, I do not quite understand his focus on libel (written defamatory statements) as opposed to slander (oral defamatory statements) and thus defamation generally. Prof. Waldron says that the written word has a permanence and a visibility that the spoken word lacks, and is therefore more injurious. I doubt that this is so. Take anti-Semitism. I’m pretty sure that word-of-mouth calumny contributed much more to it than, say, The Protocols of the Elders of Zions, or any other such screed, which relatively few people read. What was much more harmful was the casual prejudice of a majority who never did.

Another set of difficulties involves the differences between the law of defamation, whether libel or slander, and the prohibition on hate speech that prof. Waldron defends. A first difference concerns sort of statements that he would criminalize under the heading of group libel. Defamation law normally distinguishes statements of fact and opinion, the latter enjoying qualified immunity. But prof. Waldron explicitly refuses to make that distinction. He also says that statements such as “no Blacks allowed” are a form of group libel too, since they deny the equal membership of their targets in society, yet statements of this sort―distasteful as they are―are not defamatory, because they are not lies.

In another way though the scope of the prohibition on hate speech, as prof. Waldron envisions it, is narrower than that of defamation law. The latter imposes liability for all sorts of negative statements―not just those that present their targets as unfit for citizenship or membership in society. Prof. Waldron is only concerned with the statements of that sort. The reason is that, for him, the purpose of criminalizing hate speech is the protection of human dignity, which he takes to mean (among other things) the equal high status of every person as a rights-bearer and member of society. I have no quarrel with that understanding of human dignity, but it is not what underlies defamation law; defamation law is concerned with the protection of reputation, and fitness for citizenship and social membership is not the only thing that matters for a person’s reputation.

Finally, unlike the law of defamation, the criminalization of hate speech, at least as it is usually implemented―and I do not understand prof. Waldron to be advocating for something different on this point―only proscribes statements targeting a certain number of groups, usually defined by innate and/or relatively unchangeable characteristics (such as race, gender, sexual orientation, etc.). Defamation law, by contrast, might have started out as a mechanism for protecting the rich and powerful, but now it protects everyone. And it is not clear why hate speech law would not. If the worry is that racist statements will make racial minorities appear to  lack the rights that the majority has, should we not worry in the same way about statements such as “police are scum”? For some people at least, such statements actually imply that members of the police are inferior, morally deficient, and perhaps deserve to be deprived of rights. Should such statements be criminalized? They are in some places―Russia is one, and of course it uses the criminalization of the stirring of hatred against “identifiable social groups” as a means of political repression. But if we don’t want to follow that dubious example, we need a distinction, an explanation for why denigration of some groups is prohibited while that of others is not. The law of defamation is not a place where such a distinction can be found.

In short, I think that prof. Waldron’s attempt to define hate speech as group libel is quite weak. There are important differences between the two concepts. Now this, without more, does not mean that he is wrong that criminalizing hate speech is a good idea. But if it is, it has to be justified on its own terms, without reference to the (perhaps) less contested defamation law; that reference is only a distraction. I turn to prof. Waldron’s justification of hate speech law in the next post.

There’s Nothing in That Name

This morning, the Supreme Court delivered a decision that is a further small step in the debate about the right of litigants to privacy and the right of the public to know what goes on in our courtrooms. I blogged about these issues here and here.

The applicant in the case, A.B. v. Bragg Communications Inc., 2012 SCC 46, is a teenage victim of cyber-bullying. Someone created a fake Facebook profile using her name and picture and wrote all manner of nasty things there. In order to sue that person for defamation, she applied for a court order to compel the internet provider associated with the I.P. address that was used to create the fake profile to disclose the name of the person to whom the address belonged. As part of that application, she also requested the right to proceed anonymously and a ban on the publication of the contents of the fake profile.

The internet provider did not oppose this application, but Global Television and the Halifax Herald did oppose the application for the right to proceed anonymously and the publication ban. They succeeded both at first instance and on appeal, with the courts concluding that the applicant failed to show how the publication of her name and details of the bullying she suffered would harm her. (The media then failed to defend their position before the Supreme Court, which appointed an amicus curiae to do it. Perhaps it dawned on them, rather late in the game, that this was not the best case to defend the freedom of the press.)

The Supreme Court allowed the appeal in part, in a unanimous decision by Justice Abella, holding that evidence of harm to the individual applicant was not necessary in a case such as this to support the right of the applicant to proceed anonymously. “Objective harm”―that is, a legal presumption of harm―is sometimes enough to justify banning the publication of certain details about legal proceedings. This is a case that warrants drawing the presumption. The law is especially solicitous of children’s privacy because it recognizes their vulnerability, and “[i]t is logical to infer that children may suffer harm through cyberbullying” (par. 20). Furthermore, says Justice Abella (par. 20)

we must consider the resulting inevitable harm to children — and the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure.

As for the public interest in open courts, it is not much affected by allowing a victim of cyber-bullying to proceed anonymously. Just as in sexual assault cases where the publication of the victim’s identity is prohibited, the media can still attend the hearings, see and hear the evidence, and present the details of the case, except the victim’s name, to the public. Once the applicant is allowed to proceed anonymously, there is no need for a further publication ban, says Justice Abella, because the harm that she might suffer would result from tying the allegations of the fake profile to her, and not for their mere airing.

That seems like the right decision, so far as it goes. The interesting question, however, is whether it can go further. There is some ambiguity, as is usual in common law cases, especially those addressing novel issues, about which of the arguments that the decision relies on are essential and which are not. In other words, is this a case about cyber-bullying of children, or about any form of unpleasantness involving children, or about cyber-bullying generally, or about something broader still?

The decision makes much of the special vulnerability of children and of the special harms of cyber-bullying. But must the two be present in a case in order to trigger the presumption that harm to the victim will result from the publication of his or her name? What if the case is about old-fashioned schoolyard bullying? Or what if it’s cyber-bullying, but the victim is an adult? Justice Abella also mentions the risk that victims will be discouraged to come forward if the nasty things said about them will end up all over the media. That’s surely right, and not only in cyber-bullying (and sexual assault) cases. It affects defamation cases generally, for instance, since the media is entitled to report on the allegedly defamatory statements if they are the object of litigation. And the idea that the harm to freedom of expression and freedom the press from the anonymization of court cases is minimal can be applied in all sorts of cases, as I discuss in my previous posts on this topic.

Only future cases will tell what the courts will make of these possibilities.

Quasi-Constitutional Rights?

What are “quasi-constitutional rights”? Is this a meaningful, a useful concept? Justice Lebel’s comments in a decision released last week by the Supreme Court raise the question.

The decision, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 is one of three released last Wednesday, all dealing with questions of when Canadian courts can, and when they should, assume jurisdiction over a tort action with multi-jurisdictional elements. In this case, the action was in defamation. The appellants were the publishers of a book savaging Canadian mining companies for their activities (allegedly involving massive human rights violations) in Africa. The respondents were one of these companies. The book was published in Québec, but over 90 copies were sold in Ontario, some to public libraries, and the book was promoted there. The respondents are based in Ontario, and sued for defamation there. The publishers tried to have the proceedings stayed either for lack of jurisdiction or because the Ontario court was a forum non conveniens; they argued that the respondents were engaging in libel tourism, suing for defamation in jurisdiction more favourable to plaintiffs than that in which the suit should logically have been brought (in this case, Québec). Their motion was dismissed, and their appeals rejected both by the Ontario Court of Appeal and now by the Supreme Court.

In discussing the issue of the choice of law in defamation actions, Justice Lebel wrote (for the unanimous court)

that the harm occasioned by the publication of a defamatory statement is not the publication itself, but rather injury to the plaintiff’s reputation. While the constitutional right to the protection of freedom of expression must be upheld in the crafting of the law of defamation, this Court has recognized that one of the primary purposes of the law of defamation is to protect the reputation of the individual, which was elevated to quasi-constitutional status in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. [par. 57]

As those of you who read my lament about the Charter’s unfortunate effects will recall, I am not a fan of Justice Cory’s reasoning in Hill, linking reputation to innate dignity and privacy, which I called “grasping at constitutional straws.” At least, Justice Cory did not actually speak of a “quasi-constitutional status” for the right to reputation. Justice Lebel now does. What does that mean? Continue reading “Quasi-Constitutional Rights?”