Sociétés Anonymes?

I have posted a number of times about the problem of (unwanted) publicity which the appearance of one’s name in judicial decisions might bring (my posts on this topic are collected here). Because judicial decisions are widely and freely available on the internet, being identified as a party to a lawsuit can damage one employment prospects; it can reveal details about one’s personal life, financial situation, or health problems; it can even, in an extreme case, be outright dangerous. So I have been wondering aloud whether we would not do well to apply the rule which Québec already has for family law cases: the parties are not identified in the courts’ reasons for judgment. In this way, the public can still, as I put in an earlier post, “know what evidence was before the court and what the court did with it,” which is important for keeping the law accessible and the courts accountable, but without compromising the actual people involved.

I want to come back to this question, because I think that my previous attempts to grapple with it missed an important issue. All of the cases which my previous posts on this topic discussed involved individuals, at least as parties seeking anonymity. But much litigation involves corporations rather than physical persons. If we think about expanding the anonymization of cases, then we must address the issue of what to do about corporate parties. Is anonymity warranted for them too? It is interesting that the only categorical anonymity rules in Canadian law (at least those that I am aware of) concerns types of cases where corporations cannot be involved, namely family law proceedings in Québec and criminal cases were the accused is a minor. But could a requirement of anonymity, or even an entitlement to anonymity, be applied in “ordinary” cases which might involve corporate as well as individual parties?

These questions, in turn, force us to think again about the purpose of anonymity, even for individuals. Is the reason we anonymize certain cases the protection of privacy or that of reputation? These two interests are closely related, but not identical. (Actually, this might be a controversial assertion. The Supreme Court has invoked privacy as a reason for protecting individual reputations. I think this is wrong, but I cannot defend this claim here. I will only say that privacy, in my view, is a right to be left alone; it would matter even on a desert island. Reputation, by contrast, only makes sense in a context where you associate with others. It is the opinion others have of you.)

In some cases, the driving concern is surely privacy ― as in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, where the Supreme Court authorized a teenager who was the victim of cyberbullying to proceed anonymously against her tormentors. But in other cases, I am not so sure. Is it really privacy, for instance, that justifies hiding the identities of minors who are accused ― and even of those who are convicted ― of crimes? Unlike, say, that teenager’s personal life, a crime, especially one that has been proven in court, is not exactly a private matter. It personally concerns a number of people other than the perpetrator, it concerns the state, and it possibly concerns the public at large. Arguably, the better reason for anonymity in such cases is a solicitude for the reputation of the accused, for their ability eventually to make a life for themselves free from the stain of the faults of their youth.

The distinction matters because it would be, it seems to me, somewhat strange to say that corporations have a right to privacy which the law ought to protect. The law does, however, protect corporate reputations. (For example, corporations are capable of  suing in defamation ― in Canada at least (as well as in the UK); some Australian states have severely limited their ability to do so.) If the reason for anonymity in judicial decision is privacy, corporations should not benefit from it. If it is reputation ― well, the question is more difficult.

As I suggested in an earlier post, “there is … a legitimate public interest in knowing what is happening to whom, or who exactly is involved in stories that attract attention.” There is also a legitimate public interest in knowing that somebody ― whether an individual or a corporation ― is “bad guy,” which a judicial decision can reveal. A blanket rule of anonymity for any and all cases would surely be a bad idea (quite apart from questions about its constitutionality). But what about more limited rules? What about rules that allow the successful party (whether plaintiff or defendant) to remain anonymous? Would such rules even be workable? I’m not sure about that. Much as before, I have very few answers here. I just wanted to add another consideration to my and, I hope, your ongoing reflection.

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.

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?”