Earlier today, Kyle made a comment on Facebook that was serendipitously related to a paper I wrote last semester discussing the difference in U.S. and Canadian libel laws.
So in answer to his query about the difference between U.S. and Canadian libel law, here is the paper I wrote for Comparative Constitutionalism. It wasn’t my best paper, but I got a B+ in the class, so I think that should be good enough to at least provide basic information about the topic. But rereading for the first time since completing it in December, it is pretty awful.
pdf: Mintz Cardozo paper on US and Canada libel law
Libel Standards in Canada and the United States
A. The U.S. actual malice standard for libel, and nations with a similar standard
The landmark U.S. Supreme Court decision in New York Times Co. v. Sullivan established the high standard of requiring actual malice to prove libel.1 However, Sullivan has not just set the standard for the United States, but acted as guiding case for many other countries as well. Argentina has actively applied the actual malice doctrine since the 1987 case Costa, Héctor R v. Municipalidad de la Capital y otros.2 In that case, the Argentine Supreme Court spotlighted Sullivan, noting that American free speech jurisprudence is undeniably relevant to how freedom of the press should be interpreted under the Argentine Constitution.3 Bosnia has also adopted a malice-based libel standard, holding that “harm [is] caused in making or disseminating the expression of he or she knew that the expression was false or acted in disregard of its veracity.”4 The Hungary Constitutional Court has also held that actual malice must be proved in libel cases.5 The Hungary court echoed Justice Brennan’s “perfect and splendid” language from Sullivan, stating, “In these [wide-open] debates governments and officials are attacked by unpleasant, sharp and possible unjust accusations, and facts are brought to public knowledge which are capable of offending the honor of public figures.”6 However, the court held that open discussion of public affairs is essential in a democratic society, rendering criticisms of government authorities a necessity. The Supreme Court of India has endorsed the actual malice standard as well. In Rajagopal v. State of Tamil Nadu, the court held that public officials cannot recover damages for libel when the actions are discussed in context of official duties, reasoning that this should be held “even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for the truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts.”7 An intermediate appellate court in Pakistan has also held actual malice as the standard for defamation cases. The judge in Nazami v. Rashid held that public figures must prove that defamatory statements are false and that they were published “recklessly and maliciously” with no attempt at verification, and thus that statements critical of public figures cannot give rise to liability unless motivated by malice, personal ill will or “spite and eliberate and false attack on one’s personal life.”8 Indeed, given this vast smattering of nations from South America to Europe to Asia adhering to an actual malice standard for libel against public figures, it is easy to see that the U.S. standard held in Sullivan has had a global impact, even on nations that do not share a similar history, origin, or philosophy. However, it then seems almost contradictory to note that the United States’ closest neighbor, Canada, not only has a different standard, but has actively contemplated and rejected the U.S. standard.
In this paper, I will compare the U.S. standard actual malice against the Canadian strict liability standard, with specific focus on the Canadian Supreme Court case Hill v. Church of Scientology of Toronto. I will also analyze the comparative histories of the two countries in an attempt to elucidate the reason behind the different constitutional conclusions, with specific focus on the historical role of the press and attitudes towards truth and falsity.
II. Actual malice in the United States and strict liability in Canada
A. The U.S. perspective in Sullivan
Prior to Sullivan in 1964, the United States had a strict scrutiny standard for libel similar to the current Canadian model. However, with the decision in Sullivan, the Supreme Court extended First Amendment protection of speech to a large range of defamatory expression. The case concerned a Montgomery, Alabama city commissioner, Sullivan, who sought compensation for injury to his reputation caused by factual errors in a pro-civil rights advertisement printed in the New York Times. The ad, titled “Heed Their Rising Voices,” described the plight of civil rights in the south and advocated for help.9 Sullivan pointed out that the advertisement contained several misstatements of fact, such as misstating the number of times Dr. Martin Luther King, Jr. had been arrested and that students on the capitol steps had not sung “My Country, ‘Tis of Thee,” but rather the national anthem.10 Although Sullivan was not mentioned directly in the advertisement, the ad did attack the Montgomery police, for which Sullivan was generally responsible. As a result, the Alabama jury awarded Sullivan the $500,000 he sought in the case.11
However, upon appeal to the Supreme Court, a unanimous opinion held that “the Constitution delimits a State’s power to award damages for libel actions brought by public officials against critics of their official conduct.”12 The opinion, described as written “without a great deal of comment,” held that the court’s enforcement of common law was state action and subject to constitutional scrutiny, explaining that criticism of public officials and the manner in which they fulfill their duties mandate special protection under the democratic process of government.13 Therefore, to protect the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,” the court required that public officials could only recover damages for defamation if they proved that the statement was made with actual malice.14 According to the court, actual malice would be present in the event that a defendant had knowledge of a statement’s falsity prior to its publication or if the defendant acted with reckless disregard of its truth or falsity.15 While there has been a discernible trend since Sullivan in the U.S. court system towards limiting the public figure category, the Supreme Court has held to the core of the Sullivan decision, a core that has influenced other legal systems worldwide.16
B. The Canadian perspective
1. Canadian common law standard
Contrary to the U.S. actual malice rule, Canadian defamation law adheres to a strict liability standard, which holds that liability does not depend upon the intent or malice of the publisher but rather the mere fact that defamation occurred.17 If a plaintiff proves that a statement is defamatory, then falsity and damages are presumed and the burden shifts to the defendant. Supporters of this standard justify the presumption of falsity and damages based upon three key notions. First, it is generally difficult for a plaintiff to prove damages because of the inherent difficulty in stating the monetary consequences a defamatory statement. Secondly, it is similarly difficult for the plaintiff to prove the falsity of a false statement, treading into the philosophical quandary of trying to prove a negative. Third, the requirement that the defendant prove the truth of the statement is consistent with the minimal standard of competent journalism.18
Of course, a defendant does have several defenses to a charge of defamation. Absolute privilege is granted to statements made by participants in Parliament, provincial legislatures, and judicial proceedings for the purpose of free and open debate. The media benefits from that privilege as well when it reports on those events in a fair, accurate, and timely manner.19 Furthermore, plaintiffs only have a limited amount of time to issue a libel notice to the defendant in a libel suit. In contrast, the U.S. Statute of limitations on libel actions is 1-3 years.20 On the other side, potential plaintiffs are given several days to review the statement, and if they concede a mistake and offer an apology, the courts will lower damages to actual damages rather than damages for harm to reputation. This usually amounts to the courts finding no damages at all.21 In addition, the Canadian “losers pay” rule helps to discourage unfounded claims from reaching court.22 Despite these protections, the strict scrutiny rule for libel has come under attack from free speech advocates who would prefer a standard more along the lines of the actual malice.
2. Balancing the Canadian Charter of Rights and Freedoms with the Common Law standard in Hill v. Church of Scientology of Toronto
Canadian advocate of a stronger freedom of expression and stricter libel requirements, point to the Canadian Charter of Rights and Freedoms. Specifically, section 2(b) of the Charter identifies a basic freedom of expression:
2. Everyone has the following fundamental freedom:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.23
After the implementation of the Canadian Charter, it was increasingly argued that Canada’s strict liability libel law inappropriately infringes upon these free speech rights by offering a legal avenue to censor or chill the press.24 This apparent conflict between Canada’s common law rule of strict liability and a proclaimed fundamental freedom of expression came to blows in the Canadian Supreme Court case Hill v. Church of Scientology of Toronto.25
In that 1995 case, the Supreme Court of Canada actively rejected the actual malice rule and held that the strict liability standard was a proper balance between reputation and freedom of expression. Hill was a lawyer with the Ministry of the Attorney General for the Province of Ontario and acted for the Crown on legal matters concerning the Church of Scientology and a police search and seizure of its documents. The documents were sealed awaiting a search warrant, but another government official initiated a review of the documents to determine whether the Church of Scientology should be allowed to grant marriages like other religions. Even though Hill was not involved in this review, the Church held a press conference and alleged that Hill misled the court and helped to open and inspect the sealed documents, and initiated a contempt prosecution against Hill. However, even though the Church’s own agent monitored the documents and found no evidence that they had been tampered with, the Church continued its rhetoric against Hill and sought to disqualify him from the proceedings.26 Hill sued the Church for damages from the libel at the press conference. The jury awarded Hill $300,000 against the Church in general damages, and $500,000 and $800,000 against the Church for aggravated and punitive damages.27
Upon appeal, the Church argued that the common law standard was contrary to the Charter and encouraged the adoption of an actual malice standard. The Supreme Court rejected these arguments and found that common law defamation was not contrary to the Charter. First, it held that Hill’s employment as a Crown attorney did not automatically make his action into state action, and therefore did not submit the resulting defamation suit to direct Charter scrutiny: “The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employment status.”28 The court explained that basing a standard for libel cases on one’s employment would essentially create two different systems of laws. According to the Canadian Supreme Court, the importance of one’s personal reputation does not change based on government employment, but exists for everyone.29
This analysis stands in contrast to the U.S. standard in Sullivan. In that case, the court found a parallel between the privilege granted to government officials and the extent to which officials’ work could be considered government action. In Barr v. Matteo, the Supreme Court found the utterances of a federal official to be absolutely privileged if made ‘within the outer perimeter’ of his duties.30 This privilege was granted because the threat of damage suits would otherwise “inhibit the fearless, vigorous, and effective administration of policies in government” and “dampen the ardor of all but the most resolution, or the most irresponsible, in the unflinching discharge of their duties.”31 Therefore, analogously the citizen-critic of the government should be allowed to comment on government actors to the same outer perimeter of the actors’ duties. If the protections for the public were not as broad as those for the government actors, public servants would have an unjustified preference over the public they serve.32
Secondly, the Canadian Supreme Court held that because there was no state action, the Charter could not be directed applied. Rather, the court held that in the context of civil litigation involving only private parties, the Charter only applies to the common law merely to the extent that the common law itself is found to be inconsistent with Charter values.33 Furthermore, because common law is the product of incremental cases and decisions, it should be protected from overwhelming constitutional changes, thus requiring a more flexible balancing test than traditional analysis used in cases involving governmental action cases.34 For the Hill test, the burden would lie on the party that seeks to prove that the common law is inconsistent with Charter values and that common law should be changed as the result of a balancing.35
In applying this test, the court emphasized that freedom of expression was never understood in the Canadian context, both before and after the Charter, to be an absolute value. Freedom of expression has been regularly subject to legal restrictions in Canada, and weighed against the other values of a free and democratic society.36 Specifically, the court explained that false and injurious statements do not relate to the protected core values of a democratic society, and fail to contribute to healthy participation in society. As a result, they harm self-development, and are inimical to the “search for truth.”37 On the other side of the balancing test is the protection of the reputation of the individual, which the court admited has a somewhat scarce written history. Despite this, the court asserted that most people cherish a good reputation above all else and that it is closely tied to the innate worthiness and dignity of the individual, and therefore it must be protected by society’s laws and much as freedom of expression.38
Finally, the court actively considered and rejected the Church’s proposal of adopting the actual malice rule developed in Sullivan. The court emphasized the supposed adverse effects of the actual malice standard in the years since Sullivan. Among the consequences, the court identified shifting to the plaintiff the burden of proving the truth of a statement, requiring an unnecessary spotlight on media proceedings to prove malice, increased litigation costs, and the social costs of undermining discourse with false and denigrating statements.39 The court also demonstrated how the United Kingdom and Australia had rejected the actual malice standard, in contrast to the United States.
A. Historical role of the press in politics
The position of the press in the U.S. political system and history offers an insight into differing attitudes towards libel law between the United States and Canada. Indeed, the prominent role the press plays in the U.S. political process was a key argument in Sullivan for the protection of defamatory speech against public officials. Indeed, the press played an active role in the creation of the United States itself in the Revolution War. The Salem Gazette printed a full account of the battle of Lexington, providing a colored account of the burning, pillaging, and barbarities charged to the British, while praising the American militia.40 When Congress published the Declaration of Independence on July 6, 1776, it chose to do so in the Philadelphia Evening Post. Founders saw the press as part of the government process. In America’s earliest years, the press served as a force to unify the nation and awaken a common purpose, interest and destiny among the separate colonies, helping to form them into a United States.41 During the debates of what the U.S. government should be, the writers of what would become the current constitution turned to the press to make their case. When Alexander Hamilton, James Madison, and John Jay united to write the Federalist papers, they chose to publish them in The Independent Journal and The Daily Advertiser.42 When the U.S. government was finally established, the new Congress actively included the press in congressional sessions. While state legislative proceedings had always been permitted in the colonies, upon the convening of the first Congress, a Congressman Burke moved that the representatives of the press should be excluded from the sessions. At a time when taking of notes in the British Parliament was still forbidden, the U.S. Congress quickly rejected this notion of banning the press, never to revive the notion.43 Judging from these actions, it is as if instantly in its first Congress, the United States actively broke from common law attitudes towards the press. Indeed, the U.S. Government was created with the idea that the press should be treated differently than in other nations. Given this history, it should be no surprise that the Supreme Court would put the press on a pedestal, granting it treatment beyond what other common law nations see as necessary.
In the Sullivan decision, the Supreme Court drew on the rhetoric of the founders, specifically James Madison, to explain how the U.S. Constitution provides for a government where absolute sovereignty lies with he people, and their press, rather than with the government. Pointing specifically to Madison, the court explained that the U.S. System is supposed to be “‘altogether different’ from the British form.”44
“‘Is it not natural and necessary, under such different circumstances,’ he asked, ‘that a different degree of freedom in the use of the press should be contemplated?’”45
From the perspective of one of the key authors of the constitution, a new government meant a new attitude towards the press. Madison even foresaw and observed expansion of press freedoms beyond the previous common law standards:
“‘’In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands.’”46
For Madison, and the Supreme Court, the right of free public discussion of the actions and activities of public officials is a fundamental principle and inherent character of the American form of government.
In an almost Freudian reaction to events in nation’s origins, scholars have viewed Sullivan as securing the role of the U.S. Constitution protection of free speech in the First Amendment as a refutation of the Sedition Act of 1798. In his analysis of Sullivan, Harry Calvin, Jr. determined that “the Touchstone of the First Amendment has become the abolition of seditious libel and what that implies about the function of free speech on public issues in American democracy.”47 Indeed, the United States experimented with a stricter standard for libel in the form of the Sedition Act, which made it a crime to publish any “false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress, or the President, with intent to defame or bring them, or either of them, into contempt or disrepute.”48 The Act allowed truth as a defense, and provided that the jury was judge for both law and fact. However, despite these qualifications, as the Sullivan court identified, the Act was condemned by both James Madison and Thomas Jefferson as contrary to the standards of the constitution.49 From its founding, the United States had imagined a different standard for its press and for its government.
In contrast, Canada does not have a history that elevates the press to any heightened position. Canadian courts have actively rejected the idea of the press having any greater protection than the rest of the public. As the Canadian court made clear in Arnold v. R:
“The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher.”50
Indeed, the Canadian press does not have much in the way of judicial recognition that it is anything special or should be treated as such, unlike in the United States. These differing attitudes from political leaders, national history, and the judiciary help explain divergent attitudes between two geographically and culturally similar nations.
B. Comparative government structures
In addition to historical differences in the comparative governments, the actual structure of the governments themselves helps explain different attitudes towards the press. In Canada’s parliamentary system, ministers are directly accountable to the legislature. As part of this system, forty-five minutes of every day that Parliament is in session is reserved for what is know as Question Period. During this period, Members of Parliament may ask any question of any Member of the House.51 Members of opposing parties often use this opportunity to “launch scathing and biased attacks on the government of the day.”52 Under this system, members are protected by absolute immunity from civil liability, and their potential defamatory attacks may be printed by the press under a qualified privilege.53 What Americans may see as partisan bickering is the Canadian press’ source for coverage and commentary. While the American press controls the potential defamations themselves, talk radio for example, the Canadian press may look to Parliament for its material.54 In contrast, the United States republican system of government is built around the separations of powers. Under the Constitution, the President is only obligated, from time to time, to provide Congress with information concerning the State of the Union and recommend measures.55 The President is never required to field questions from Congress. Rather, the President’s communications with the public and Congress are often forged through the press, with carefully staged press conferences and tightly controlled information releases.56 Given this separation of powers and abilities by the branches to control their own messages, journalists play a very important role in the political process. Therefore, as Madison argued, the press in the United States requires a great degree of freedom in order to adequately carry out its crucial role as a check on government.57 Indeed, when one compares the two different checks on government, Question Period in Canada and the press in the United States, both are granted similar privileges. The difference between Canadian and American views is not the amount of protection that the institutional check on the government merits, but rather just who the check on the government is.
C. Ideas of truth and falsity
In addition to different attitudes towards and roles for the press, Canada and the United States also have different perspectives on the consequences of false statements in public dialogue. In Hill, the court rejected the idea that any sort of false statement can help contribute to the goals of a free and democratic society. The court, instead, lists “the search for truth” as a goal of society.58 To the contrary, the United States has recognized that false statements are often unavoidable in a constructive dialogue. Even at its founding, Madison recognized the inevitably of false statements: “Some degree of abuse is inseparable from the proper use of every; and in no instance is this more true than it that of the press.”59 From a philosophical perspective the court in Sullivan recognized that error is inescapable, quoting John Stuart Mill’s On Liberty: “Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.”60 Indeed, false statements in argument were viewed by the court as inevitable. However, the Sullivan court accepted false statements not just because they are an inherent part of debate, but also because the line between false and true is often difficult to distinguish.
As the Sullivan court cited from Cantwell v. Connecticut, political debate is often like religious debate, in which no side can prove their own side: “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor.”61 Indeed, what is true to one man may not be true for another. The Supreme Court inherently recognizes the flexibility of truth and falsity. It should be no surprise that the Sullivan decision was written in 1964. The Civil Rights movement, like the Civil War before it, saw a nation turned against itself. At trial, Sullivan saw a judge who refused to integrate seating, reject the 14th Amendment, and promise to uphold “what man’s justice.”62 In the United States, it is possible for a judge, and a state, to see truth where another state, or the Federal government, sees lies. Given these conflicts, one can understand how the Supreme Court could view truth as a tenuous topic.63
Cultural and geographically, Canada and the United States are extremely close. Judging from its adoption by various nations worldwide, the U.S. actual malice standard for libel cases does not suffer from severe flaws, and has been extremely influential. However, Canada has contemplated and refused to adopt this Sullivan standard. Differing history and government structure helps shine a light on to why these two similar nations would adopt opposing standards.
1 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
2 Argentine Supreme Court of Justice 310 Fallos 508 (1987).
3 Kyo Ho Youm, Impact on Freedom of the Press Abroad, 22 Comm. Law. 12, 12 (2004).
4 Law on Protection Against Defamation of the Federation of Bosnia and Herzegovina, art. 6(4) & (5) (October 2000), quoted in Youm.
5 Constitutional Court of Hungary, Decision 36/1994, on Defamation of Public Officials and Politicians (June 24, 1994), quoted in Youm.
7  A.I.R. India 264 (Oct. 7, 1994), quoted in Yuom.
8 P.L.D. 1996 Lahore 410 (Pakistan), quoted in Yuom.
9 Sullivan, 376 U.S. at 256-57.
10 Sullivan, 376 U.S. at 257-58.
11 Ibid. at 256.
12 Ibid at 283.
13 Charles Tingley, Reputation, Freedom of Expression and the Tort of Defamation in the United States and Canada: A Deceptive Polarity, The Alberta Law Review, 37 Alberta L. Rev. 620, 627 (1999).
14 Ibid. at 627.
15 Sullivan, 376 U.S. at 283.
16 Tingley at 629.
17 Tingley at 624.
18 Tingley at 624.
19 R. Martin, Essentials in Canadian Law — Media Law (Concord, Ont.: Irwin Law, 1997) at 126, 151, quoted in Tingley at 625.
20 Tingley at 625.
21 R. Martin, “Does Libel Law have a ‘Chilling Effect’ in Canada?” in R. Martin & G.S. Adam, eds., A Sourcebook of Canadian Media Law (Ottawa: Carlton University Press, 1989) 757, quoted in Tingley at 626.
22 Tingley at 626.
23 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
24 M.G. Crawford, The Big Chill (1992) 16:3 Can. Law 14.
25  2 S.C.R. 1130
26  2 S.C.R. 1130, ¶ 20-27.
27  2 S.C.R. 1130, ¶ 53.
28  2 S.C.R. 1130, ¶ 74.
29 Ibid. at ¶ 74.
30 Sullivan, 376 U.S. at 282, citing Barr v. Matteo, 360 U.S. 564, 575 (1959).
31 Barr v. Matteo, 360 U.S. 564, 571 (1959).
32 Sullivan, 376 U.S. at 282-83.
33  2 S.C.R. 1130, ¶ 98.
34 Ibid. at ¶ 100.
35 Ibid. at ¶ 101.
36 Ibid. at ¶ 106.
37 Ibid. at ¶ 109.
38 Ibid. at ¶110.
39 Ibid. at ¶130-136.
40 Revolutionary Newspapers, in The Cambridge history of English and American literature: An encyclopedia in eighteen volumes (W.P. Trent, J. Erskine, S.P. Sherman, and C. Van Doren, eds., 1907-21), available at http://www.bartleby.com/226/1201.html
42 Reporters Admitted to the Debates in Congress, in The Cambridge history of English and American literature: An encyclopedia in eighteen volumes (W.P. Trent, J. Erskine, S.P. Sherman, and C. Van Doren, eds., 1907-21), available at http://www.bartleby.com/226/1205.html
44 Sullivan, 376 U.S. at 274.
45 Ibid. at 274-275.
46 Ibid. at 275.
47 H. Calvin, Jr., “The New York Times Case: A Note on the Central Meaning of the First Amendment” 1964 Sup. Ct. Rev. 191, 209 (1964).
48 Sullivan at 274.
49 Ibid at 274.
50 83 L.J.P.C. 299 at 300 (P.C.)
51 M.J. Bryant, “Section 2(b) and Libel Law: Defamatory Statements about Public Officials” 2 Media & Communic. L. Rev. 335, 362.
52 Tingley at 635.
53 Ibid. at 636.
54 Ibid. at 636.
55 U.S. Const. Art. I, §3, cl. 1
56 Bryant at 362.
57 Tingley at 634.
58  2 S.C.R. 1130, ¶ 109
59 4 Elliot’s Debates on the Federal Constitution (1876), p. 571., cited in Sullivan at 271.
60 Mill, On Liberty (Oxford: Blackwell, 1947), at 15.
61 Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).
62 S. Wasby, “A Transformed Triangle: Court, Congress, and Presidency in Civil Rights” 21:3 Pol’y Stud. J. 565 (1993).
63 It should also be noted that the early 1960s saw the publication of Thomas Kuhn’s The Structure of Scientific Revolutions. This work was a landmark publication that documented how scientific systems become overthrown and previous concepts of scientific truth are replaced with new models. This shows that not just in the courts, but elsewhere in American society, the concept of truth as a tenable concept was increasingly being questioned.