Balancing Protection and Expression: Libel

The libel laws of Canada and the United States provide a unique glimpse into the legal difficulties inherent in reconciling the right to free speech and expression with the protection of one's reputation.  After examining both countries' legal precedents surrounding libel, it appears the United States has gone the furthest to bridge the gap between expression and protection.

The new Canadian libel defense, “responsible communication”, gives journalists and members of the press expanded protections against libel and defamation claims. The 2009 ruling shifts the defense from proving the veracity of libelous remarks (a relic of British common law) to a new two-part defense that must prove the “publication is on a matter of public interest”, and that the “publisher was diligent in trying to verify the allegation” in terms of its seriousness, public importance, urgency, “status and reliability” of the source, representation of the plaintiff’s side, the justifiable inclusion of the statement, and the public interest in the statement itself apart from its truth.

The “responsible communication” defense arose from the Grant v. Torstar decision which famously asserts, “In the modern context, it is argued, the traditional rule has a chilling effect that unjustifiably limits reporting facts, and strikes a balance too heavily weighted in favour [sic] of protection of reputation. While the law should provide redress for baseless attacks on reputation, defamation lawsuits, real or threatened, should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society.” Grant v. Torstar was also decided in response to the libel laws in other countries that “give more protection to the press”. This ruling recognizes the difficulty in reconciling constitutional values and the protection of “individuals’ reputations” but, just as in the United States where state laws are often amended to retain constitutional fidelity, the Canadian common law concerning libel was seen to be at odds with the national Charter and the constitutional rights designated therein.

In Quan v. Cusson, the Supreme Court of Canada granted an appeal based on the Grant v. Torstar “responsible communication” decision. At the initial trial, the jury was asked to rule on the truth of each written statement in the libelous article. It dissected each claim in the article and awarded the plaintiff compensation for “general damages” but “found that there was no ‘actual malice’ on the part of any of the defendants” and did not award any “special, aggravated or punitive damages”. In Quan v. Cusson, instead of requiring the defense to prove the accuracy of libelous claims (as was done in the original trial), the Supreme Court of Canada granted an appeal based on the precedent set in Grant v. Torstar, stating, “the defendants’ liability hinges on whether they were diligent in trying to verify the allegations prior to publication”—not in the truth or falsity of the libelous claims on a statement-by-statement basis.

In returning to the jury’s refusal to award damages based on  "actual malice" in the initial Quan v. Cusson trial, we are encouraged to examine the protections offered by the United States’ libel precedents.

In New York Times Co. v. Sullivan , a police commissioner sued the New York Times Co. for publishing an advertisement that the commissioner claimed was libelous towards him. The advertisement did not mention the commissioner by name or single him out as an individual. With this in mind, and despite some factual errors in the published advertisement, the Supreme Court decided  “the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.”

In the United States, after the New York Times Co. v. Sullivan case, the burden of proof that common law places on the defendant was thenceforth determined to rest on the plaintiff. Instead of requiring the defendant to prove the truth of their statements, the plaintiff would now be responsible for proving the defendant harbored actual malice or was negligent in verifying information.

The Gertz v. Welch case served to clarify the New York Times Co. v. Sullivan decision by extending more protection against libel to private citizens than to public officials and public figures, The court ruled that because private citizens, “characteristically have less effective opportunities for rebuttal,” the New York Times Co. v. Sullivan defense is available to publishers and the media only when the libel accusation applies to public officials and public citizens.

The Supreme Court overturned the original decision because the defendant, Elmer Geetz, “plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.” The court decided that defamatory trials would be decided with regards to the individual as a matter of public interest (i.e. the aforementioned public officials and public citizens) as opposed to considering the issue itself a matter of public interest.

The United States’ libel laws have arrived at the most just balance of freedom of speech and protection of personal reputation. By implicitly incorporating the Canadian standard of “responsible communication” in that was established by Grant v. Torstar in New York Times Co. v. Sullivan, which gives fair protection to publishers and broadcasters; and extending further protections to individuals with the Geertz v. Welsh ruling, the United States has developed libel and defamation protections that best adhere to the spirit of free speech and expression.

The United States’ approach to libel conserves the constitutional right to free speech while also protecting individuals. They incorporate the right to freedom of expression laid out in Article 18 of the Universal Declaration of Human Rights concerning freedom of expression and the protections of  Article 12 concerning attacks upon honor and reputation. In requiring “actual malice” and granting different public and private citizens’ rights in regards to libel protection, the United States takes a step to reconcile John Stuart Mill’s  "marketplace of ideas" approach to free speech that argues that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered” in the interest of promoting truth, with Mill’s claim that, “The liberty of the individual must be thus far limited; he must not make himself a nuisance”—which limits the individual with malicious intent. These balances make the United States’ libel laws the most just in terms of their promotion and limitation of free speech.