Political libel

The criminal statutes protecting nobility from criticism in 16th and 17th century England eventually evolved into various categories of political libel (see slander and libel for the modern incarnation of this law). Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel had been established.

Modern slander and libel law evolved since then to mostly eradicate the use of libel laws to intimidate active political participants during a public debate. Accordingly this is now a matter of historical interest only in all jurisdictions other than Canada, where use of the law by government, political and religious groups is common, and often used against defendants outside Canada.

No longer exists in most English speaking jurisdictions

Veronica Guerin used nicknames for underworld figures to avoid Irish libel laws.

In most developed countries, a combination of discouragement to vexatious litigation, general recognition of chilling effects, and sometimes formal definition of a strategic lawsuit against public participation, serve to limit politically motivated libel suits. Many lawyers advise strongly against filing any suit against critics with political motivations. The McLibel case is usually cited as libel law backfiring.

Many jurisdictions established such difficult tests for application of libel law to political statements, even exempting specific types or processes of criticism, that any specifically or overtly political comment has been effectively exempted from tort law:

• Recognizing the chilling effect of such laws, American courts reformed libel law to protect free speech on matters of public interest, where plaintiffs bear onus of proving falsehood, fault and damage. All statements of opinion are immune from liability. This includes almost all political statements.
• In Australia the traditional common law was deemed to be “tilted too far against free communication.”^[1] and courts recognized privileges for political discussion and eventually a new 2006 uniform Defamation Act in Australia.
• In 2001, the British House of Lords recognized in Reynolds v Times Newspapers Ltd a new test for a case-by-case privilege for publications which, though otherwise actionable, dealt with a matter of public concern in a manner which was reasonable and balanced in all the circumstances. They recognized an obligation to protect journalism.
• New Zealand's Defamation Act includes a qualified privilege for non-reckless and non-sentimental statements about political figures.

Canada

However, the direction of Canadian libel law has markedly differed from that in other English speaking countries. While Canadian lawyers, like those in other countries, advise strongly and publicly against legal intimidation of political critics, the Law of Defamation in Canada notes that the common law of defamation has been described by scholars and judges as “artificial and archaic” and characterized by “absurdities”, “irrationality”, and “minute and barren distinctions” (p. 1-3). Dan Burnett argued that "other 'free and democratic societies' have concluded that the traditional common law requires reform" to avoid infringing free expression and political freedom, but Canada has not. It also inhibits online journalism. Burnett says "Internet publication by media outlets opens the door wide to forum shopping, raising concerns that Canada will become a haven for libel plaintiffs who likely would not succeed in their more natural forum." Several online journalism forums in Canada have closed or restricted access drastically due to the exposure to nuisance or vexatious litigation.

Forum shopping

The definition of libel deviates so significantly in Canada, particularly English Canada, that plaintiffs outside Canada bring libel suits against non-Canadian defendants such as the New York Post and the Washington Post - a practice known as 'forum shopping'. Burnett says "they likely have good legal advisers who correctly tell them that Canadian libel laws favour plaintiffs... our libel laws are the least protective of free speech in the English-speaking world."

p2pnet.net

A suit by the founder of Kazaa, based in Australia, was launched against p2pnet.net, to silence critics of the company and its founder. The case was not launched, however, in Australia but in British Columbia, that being seemingly an example of this forum shopping.

Religious plaintiffs

While religious figures and movements have recourse to other laws including hate crime legislation, they have made use of the libel law's provisions intended to stop political critics of powerful church figures.

Hill v. Scientology

Despite Canadian adoption of the Canadian Charter of Rights and Freedoms in the 1980s, its courts have rejected US-style limits on libel law. While it was neither a political case or one about the freedom of religion, in Hill v. Church of Scientology of Toronto [1995] S.C.J. No. 64, Justice Peter Cory, for the Supreme Court of Canada, stated, “I simply cannot see that the law of defamation is unduly restrictive or inhibiting”. However, other English speaking countries have ruled differently. From about 1994 to 2006, according to Burnett, "the highest courts in England, Australia and New Zealand have all recognized that the traditional law of libel fails to adequately protect free speech, and they have all issued decisions which begin to right the balance. Every one, that is, except Canada."

Political plaintiffs

An aspect of this favouring of plaintiffs is unconcern with their political position, and the viability of political libel suits from Canada that might fail from elsewhere. In Canada, statements about politics, even from political party leaders in or on the eve of an election, are subject to the same rules of libel as other statements made under other circumstances.

Martin and Harper

Just prior to the Canadian federal election, 2006, then Prime Minister of Canada Paul Martin vowed to sue Leader of the Opposition (Canada) Stephen Harper for stating that the Liberal Party of Canada's behaviour resembled "organized crime". Harper continued to mock Martin during the election with political advertising and public appearances showing money being abused and hinting that Liberals were inclined to steal taxpayers' money by nature. No lawsuit was filed and Harper won the election. However, the attempt to curb the language of the Prime Minister's chief rival on the eve of an election was widely noted.

Green Party of Canada

The "open politics" service openpolitics.ca was sued by Wayne Crookes and West Coast Title Search in 2006 for permitting republication of comments and facts made on mailing lists and printed in mainstream news articles, and additional comment on these. As Crookes was deeply involved in the Green Party of Canada and the comments focused solely on this involvement, without mentioning his business activities at all, the case was seemingly another political libel instance. The party itself had threatened to file at least one lawsuit during the same election as the Martin-Harper incident, against former staff member Matthew Pollesel. While the Party claimed that suits were in response to reports in the press and Elections Canada regarding the party's internal finances, nothing was ever filed when Pollesel's lawyer notified the Green Party that, under Canadian libel law, an organization cannot be libeled. The threatened suit, however, had the effect of demonstrating that its purpose had been to suppress political comment during the election, and not an attempt to recover any actual damages from any actual harms suffered.

Stephen Harper vs Liberal Party

PM Stephen Harper launched a lawsuit March 13, 2008 against the Liberals over statements published on the party's website concerning the Chuck Cadman affair. This was the first time a sitting prime minister had sued the opposition for libel. The $2.5-million suit names the Liberal party, the Federal Liberal Agency of Canada and the unnamed author, or authors, of the statements published on the Liberal website two weeks ago. The articles at the centre of the lawsuit are headlined "Harper knew of Conservative bribery"^[2] and "Harper must come clean about allegations of Conservative Bribery".^[3] Those statements question Stephen Harper's alleged involvement in financial "offers" made to Cadman to sway his vote in a crucial 2005 Commons showdown. The suit filed Thursday in the Ontario Superior Court of Justice does not name Liberal Leader Stéphane Dion or MPs Ralph Goodale and Michael Ignatieff - whom Harper also threatened to sue.^[4]

Dona Cadman says that prior to the May 2005 Budget vote, Tom Flanagan and Doug Finley, two Conservative Party officials, offered her husband, Chuck Cadman, a million-dollar life insurance policy in exchange for his vote to bring down the Liberal government.^[5] An audio tape suggests then-opposition leader Stephen Harper was not only aware of a financial offer to Chuck Cadman but gave it his personal approval.^[6][7]

Government plaintiffs

Common law provinces

Government agencies in Canada have also sometimes used the private defamation lawsuits against their critics. More recently, the constitutional soundness of such actions have been examined closely by courts in the provinces of British Columbia (2009)^[8] and Ontario (2006)^[9] and these actions have been rejected outright on a preliminary basis as contrary to section 2 (b) of the Canadian Charter of Rights and Freedoms. Both the BC Civil Liberties Association and the Canadian Civil Liberties Association were successful in bringing motions to dismiss Government claims for alleged defamation on a preliminary basis.

In the Dixon v. Powell River case (2009 - BCSC), the mere threat of civil litigation by a local government was deemed to have an illicit "chilling effect" on the freedom of speech, contrary to constitutional protections.

The Quebec Contextual approach - the Rawdon test-case

In the Province of Quebec, a civil law jurisdiction, the common law approach to defamation in other provinces which would lead to the outright rejection of ill-founded Government defamation claims on a preliminary basis does not apply automatically. In Quebec, these matters must, in theory, proceed to trial to determine the factual basis and context of such allegations.

In 2008, a test-case seeking to affirm that local Quebec municipalities can indeed sue for "alleged civil defamation on a Government" was initiated by small town of Rawdon, Quebec with funding and other material support from the Union des municipalités du Québec against certain internet bloggers and others. If successful, the mere threat of such litigation would thus remain a tool for local municipal councils to silence and intimidate critics, where such actions would be strictly prohibited in every other Canadian province.

Even before getting to trial, a Superior Court judge in Quebec issued an unprecedented interim injunction "not to defame the Municipality of Rawdon pending suit." This unfathomable injunction became the object of much criticism by academics, the press, Canadian and other civil liberties groups who note that "freedom of expression, freedom of information, and freedom of the press cannot be said to co-exist with any such judicial interim order".

The Quebec Court of Appeal is set to address the lawfulness of any such an interim order in February 2010. Quebec-based newspapers and the Canadian Civil Liberties Association^[10] have intervened in the matter.

The Quebec Court of Appeal may then determine the scope of Quebec's new anti-SLAPP legislation.

Governments can't sue

The Superior Court of Justice of Ontario struck the a claim of alleged defamation brought by the Town of Halton Hills.

Justice Corbett ruled:
“It is in the very nature of a democratic government itself that precludes government from responding to criticism by means of defamation actions. . . Governments are accountable to the people through the ballot box, and to judges or juries in courts of law. When a government is criticized, its recourse is in the public domain, not the court. . . . Litigation is a form of force, and the government must not silence its critics by force.”

Failed litigation

Aurora, Meaford, Georgina and Halton Hills have all seen municipal governments attempt to use their resources to sue outspoken residents who commented on political matters. Despite the fact that governments can’t sue as corporations some councils have funded private lawsuits.

Toronto Port Authority

In 2006 the Toronto Port Authority (a quasi-Federal Government agency) started litigation against a neighbourhood residents group - Community Air. The group opposed the Port Authority's support for expanded service at the downtown Toronto City Centre Airport. The suit claims that the agency and its executive board has been defamed by comments posted on the advocacy groups website. This has also been called a Strategic lawsuit against public participation, or SLAPP suit.

See also

• English defamation law

References

Sources

• Lawyers Weekly article by Dan Burnett, October 27, 2006.
• Law of Defamation in Canada, Brown
• American cases demonstrating restrictive US definition of libel: Gertz v. Welch, 418 U.S. 323, Milkovich v. Lorain Journal Co., 497 U.S. 1, New York Times v. Sullivan, 376 U.S. 254.
• Australian cases: Theophanous v. The Herald and Weekly Times Ltd. (1994), 124 Aust. L.R. 1 (H.C.) and Lange v. Australian Broadcasting (1997) 145 A.L.R. 96 (H.C.A.).
• English cases: Jameel v. Wall Street Journal [2006] UKHL 44
• Canadian cases:
  • We are all journalists now, column by Michael Geist, published in Toronto Star, June 5, 2006 and also republished by the British Broadcasting Corporation
  • GPC whistleblower crisis, 2006
  • GPC Council crisis
  • Crookes versus openpolitics, filed in BC Superior Court, May 2006
• NZ cases: Lange v. Atkinson [2000] 3 NZLR 385