Presentation Transcript

1. CONSTITUTIONAL LAW39 Freedom of Expression III: Defamation and Hate Speech

   Shigenori Matsui 1 1
2. Introduction Various attempt to protect individual rights against speech Civil liability for defamation Criminal punishment of defamation Civil liability for invasion of privacy Criminal punishment of hate speech
3. I Defamation Defamatory speech Civil liability Criminal punishment
4. Hill v. Church of scientology of Toronto [1995]
5. “The common law must be interpreted in a manner which is consistent with Charter principles. This obligation is simply a manifestation of the inherent jurisdiction of the courts to modify or extend the common law in order to comply with prevailing social conditions and values. In its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it. The common law strikes an appropriate balance between the twin values of reputation and freedom of expression. ”
6. “In my view, a traditional s. 1 framework for justification is not appropriate. It must be remembered that the Charter "challenge" in a case involving private litigants does not allege the violation of a Charter right. It addresses a conflict between principles. Therefore, the balancing must be more flexible than the traditional s. 1 analysis undertaken in cases involving governmental action cases. Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.”
7. “Certainly, defamatory statements are very tenuously related to the core values which underlie s. 2(b). They are inimical to the search for truth. False and injurious statements cannot enhance self‑development. Nor can it ever be said that they lead to healthy participation in the affairs of the community. Indeed, they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society.”
8. “Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.”
9. “The New York Times v. Sullivan decision has been criticized by judges and academic writers in the United States and elsewhere. It has not been followed in the United Kingdom or Australia. I can see no reason for adopting it in Canada in an action between private litigants. The law of defamation is essentially aimed at the prohibition of the publication of injurious false statements. It is the means by which the individual may protect his or her reputation which may well be the most distinguishing feature of his or her character, personality and, perhaps, identity. I simply cannot see that the law of defamation is unduly restrictive or inhibiting.”
10. R. v. Lucas [1998] 300. Every one who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
11. “Counsel for the Attorney General of Ontario argued forcefully that defamatory libel is not worthy of constitutional protection. This submission cannot be accepted. It runs contrary to the long line of decisions, beginning with Irwin Toy, supra, which have held that freedom of expression should be given a broad and purposive interpretation. This Court has consistently held that all expression is protected, regardless of its content, unless the form in which the expression is manifested is such that it excludes protection (as, for example, a violent act).”
12. “This Court has stressed the importance of a contextual approach in determining the appropriate balance between individual rights and state interests under s. 1. … It follows that when freedom of expression is at issue, the nature of the s. 2(b) violation must be considered in determining whether the restriction can be “demonstrably justified in a free and democratic society”…. Quite simply, the level of protection to which expression may be entitled will vary with the nature of the expression. The further that expression is from the core values of this right the greater will be the ability to justify the state’s restrictive action.”
13. “Is the goal of the protection of reputation a pressing and substantial objective in our society? I believe it is. The protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society. Preventing damage to reputation as a result of criminal libel is a legitimate goal of the criminal law.”
14. “In my view s. 300 is rationally connected to the legislative objective of protecting the reputation of individuals. On its face, s. 300 requires but one form of mens rea, namely knowledge of falsity. There is no express requirement that an accused have an intention to defame. The appellants forcefully contend that such a deficiency would not minimally impair freedom of expression…However, a historical review of the application of mens rea in the context of defamatory libel and the application of traditional principles of statutory interpretation lead inevitably to the conclusion that such an intention is indeed required and that s. 300 should be read accordingly.”
15. “The next issue raised by the appellants which is related to minimal impairment is whether the defamatory libel provisions in the Code are overbroad as a result of the civil remedy in libel which also protects the reputation of individuals. The appellants argued that the protection of reputation can be adequately achieved through the use of civil law with the result that the use of the punitive criminal sanctions is not minimally impairing. I cannot agree with this submission.”
16. “Although it is important to recognize the right of the person defamed to sue for monetary damages it is equally if not more important that society discourage the intentional publication of lies calculated to expose another individual to hatred and contempt. The harm addressed by s. 300 is so grave and serious that the imposition of a criminal sanction is not excessive but rather an appropriate response. The other reason for the existence of both a criminal and a civil remedy for defamation lies in a recognition of the problems and weaknesses that exist in civil proceedings in our present society.”
17. “Most certainly defamatory libel is far from and indeed inimical to the core values of freedom of expression. It would trivialize and demean the magnificent panoply of rights guaranteed by the Charter if a significant value was attached to the deliberate recounting of defamatory lies that are likely to expose a person to hatred, ridicule or contempt. It is thus clear that defamatory libel is so far removed from the core values of freedom of expression that it merits but scant protection. This low degree of protection can also be supported by the meritorious objective of the impugned sections. They are designed to protect the reputation of the individual. This is the attribute which is most highly sought after, prized and cherished by most individuals. The enjoyment of a good reputation in the community is to be valued beyond riches.”
18. “These two factors, the low or minimal degree of protection to be accorded defamatory lies and the meritorious object of the challenged sections, combine to facilitate the justification of the infringement of s. 2(b) of the Charter… In my view, the laudable objective of the defamatory libel provisions and their salutary effects on the protection of reputation far outweigh any negative impact on freedom of expression.”
19. Grant v. Torstar Corp. [2009]
20. “While Hill stands for a rejection of the Sullivan approach and an affirmation of the common law of defamation’s general conformity with the Charter, it does not close the door to further changes in specific rules and doctrines. ”
21. “Of the three rationales for the constitutional protection of free expression, only the third, self-fulfillment, is of dubious relevance to defamatory communications on matters of public interest. This is because the plaintiff’s interest in reputation may be just as worthy of protection as the defendant’s interest in self-realization through unfettered expression. By contrast, the first two rationales for free expression squarely apply to communications on matters of public interest, even those which contain false imputations. The first rationale, the proper functioning of democratic governance, has profound resonance in this context. …freewheeling debate on matters of public interest is to be encouraged, and must not be thwarted by “overly solicitous regard for personal reputation”... Productive debate is dependent on the free flow of information. ”
22. “The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.”
23. “The second rationale — getting at the truth — is also engaged by the debate before us. Fear of being sued for libel may prevent the publication of information about matters of public interest. The public may never learn the full truth on the matter at hand. Against this, it is argued that false statements cannot advance the purposes of s. 2(b). This contention, however, is belied by the fact the existing defence of privilege concedes: sometimes the public interest requires that untrue statements should be granted immunity, because of the importance of robust debate on matters of public interest …or the importance of discussion and disclosure as a means of getting at the truth… ”
24. “The argument also overlooks the fact that the Charter’s s. 2(b) protection is not confined to statements that a person can ultimately prove are true… I conclude that media reporting on matters of public interest engages the first and second rationales of the freedom of expression guarantee in the Charter. The statement in Hill… that “defamatory statements are very tenuously related to the core values which underlie s. 2(b)” must be read in the context of that case. It is simply beyond debate that the limited defences available to press-related defendants may have the effect of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth.”
25. “The law must take due account of the damage to the plaintiff’s reputation. But this does not preclude consideration of whether the defendant acted responsibly, nor of the social value to a free society of debate on matters of public interest. I agree with Sharpe J.A. that the partial shift of focus involved in considering the responsibility of the publisher’s conduct is an “acceptable price to pay for free and open discussion.”
26. “If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. ”
27. “Having considered the arguments on both sides of the debate from the perspective of principle, I conclude that the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law — in effect a regime of strict liability — is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. But such communications advance both free expression rationales mentioned above — democratic discourse and truth-finding — and therefore require some protection within the law of defamation. When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”
28. “I therefore conclude that the proposed change to the law should be viewed as a new defence, leaving the traditional defence of qualified privilege intact. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”..”
29. The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where: A. The publication is on a matter of public interest and:
30. B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff's side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances.”
31. Contrast with New York Times v. Sullivan (1964) of the United States Supreme Court
32. To what extent the defamatory statement should be protected under s.2(b)? What’s wrong about the actual malice rule?
33. Should the criminal punishment be upheld? What about s.301? 301. Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
34. II Invasion of Privacy Publication of privacy
35. Aubry v. Editions Vice Versa Inc. [1998]
36. “Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified.”
37. “The public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances. This is because the expectation of privacy is reduced in certain cases. A person’s right to respect for his or her private life may even be limited by the public’s interest in knowing about certain traits of his or her personality. In short, the public’s interest in being informed is a concept that can be applied to determine whether impugned conduct oversteps the bounds of what is permitted.”
38. To what extent invasion of privacy should be constitutionally protected?
39. III Hate Speech S. 319 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty… (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of…
40. R. v. Keegstra
41. “Having reviewed the Irwin Toy test, it remains to determine whether the impugned legislation in this appeal -- s. 319(2) of the Criminal Code -- infringes the freedom of expression guarantee of s. 2(b). Communications which wilfully promote hatred against an identifiable group without doubt convey a meaning, and are intended to do so by those who make them. Because Irwin Toy stresses that the type of meaning conveyed is irrelevant to the question of whether s. 2(b) is infringed, that the expression covered by s. 319(2) is invidious and obnoxious is beside the point. It is enough that those who publicly and wilfully promote hatred convey or attempt to convey a meaning, and it must therefore be concluded that the first step of the Irwin Toy test is satisfied.”
42. “Essentially, there are two sorts of injury caused by hate propaganda. First, there is harm done to members of the target group. It is indisputable that the emotional damage caused by words may be of grave psychological and social consequence. … words and writings that wilfully promote hatred can constitute a serious attack on persons belonging to a racial or religious group, and in this regard … these persons are humiliated and degraded ”
43. “A second harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. It is thus not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society. Moreover, the alteration of views held by the recipients of hate propaganda may occur subtlely, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some truth, an incipient effect not to be entirely discounted ”
44. “In my opinion, it would be impossible to deny that Parliament's objective in enacting s. 319(2) is of the utmost importance. Parliament has recognized the substantial harm that can flow from hate propaganda, and in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension in Canada has decided to suppress the wilful promotion of hatred against identifiable groups. The nature of Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred … Additionally, the international commitment to eradicate hate propaganda and the stress placed upon equality and multiculturalism in the Charter strongly buttress the importance of this objective. I consequently find that the first part of the test under s. 1 of the Charter is easily satisfied and that a powerfully convincing legislative objective exists such as to justify some limit on freedom of expression.”
45. “One must ask whether the expression prohibited by s. 319(2) is tenuously connected to the values underlying s. 2(b) so as to make the restriction "easier to justify than other infringements." In this regard, let me begin by saying that, in my opinion, there can be no real disagreement about the subject matter of the messages and teachings communicated by the respondent, Mr. Keegstra: it is deeply offensive, hurtful and damaging to target group members, misleading to his listeners, and antithetical to the furtherance of tolerance and understanding in society. Furthermore, as will be clear when I come to discuss in detail the interpretation of s. 319(2), there is no doubt that all expression fitting within the terms of the offence can be similarly described. ”
46. “From the outset, I wish to make clear that in my opinion the expression prohibited by s. 319(2) is not closely linked to the rationale underlying s. 2(b). Examining the values identified in Ford and Irwin Toy as fundamental to the protection of free expression, arguments can be made for the proposition that each of these values is diminished by the suppression of hate propaganda. While none of these arguments is spurious, I am of the opinion that expression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression values.”
47. “I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale. Together with my comments as to the tenuous link between communications covered by s. 319(2) and other values at the core of the free expression guarantee, this conclusion leads me to disagree with the opinion of McLachlin J. that the expression at stake in this appeal mandates the most solicitous degree of constitutional protection. In my view, hate propaganda should not be accorded the greatest of weight in the s. 1 analysis.”
48. “Those who would uphold the provision argue that the criminal prohibition of hate propaganda obviously bears a rational connection to the legitimate Parliamentary objective of protecting target group members and fostering harmonious social relations in a community dedicated to equality and multiculturalism. I agree, for in my opinion it would be difficult to deny that the suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society.”
49. “…in light of the great importance of Parliament's objective and the discounted value of the expression at issue I find that the terms of s. 319(2) create a narrowly confined offence which suffers from neither overbreadth nor vagueness. This interpretation stems largely from my view that the provision possesses a stringent mens rea requirement, necessitating either an intent to promote hatred or knowledge of the substantial certainty of such, and is also strongly supported by the conclusion that the meaning of the word "hatred" is restricted to the most severe and deeply-felt form of opprobrium. Additionally, however, the conclusion that s. 319(2) represents a minimal impairment of the freedom of expression gains credence through the exclusion of private conversation from its scope, the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences. ”
50. “It will by now be quite clear that I do not view the infringement of s. 2(b) by s. 319(2) as a restriction of the most serious kind. The expressive activity at which this provision aims is of a special category, a category only tenuously connected with the values underlying the guarantee of freedom of speech. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda affected by s. 319(2) represents an impairment of the individual's freedom of expression which is not of a most serious nature.”
51. R. v. Andrews [1990]
52. Canada (Human Rights Commission) v. Taylor [1990] 13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
53. To what extent the ban on hate speech should be upheld?