As with most Commonwealth jurisdictions, Canada (except the province of Quebec) has followed the English law of defamation. For this reason alone, Canadian journalists, bloggers and defamation lawyers, should take note of the recent tabling of the U.K. Government’s Draft Defamation Bill, which will undoubtedly have some impact on how Canadian defamation law in the digital age responds to the tension between freedom of expression on the one hand, and the protection of reputation and privacy, on the other. According to the UK Ministry of Justice press release:
The full measures included in the Draft Bill are as follows:
A new requirement that a statement must have caused, or is likely to cause, substantial harm in order for it to be defamatory
A new statutory defence of responsible publication on matters of public interest
A statutory defence of truth (replacing the current common law defence of justification)
A statutory defence of honest opinion (replacing the current common law defence of fair/honest comment)
Provisions updating and extending the circumstances in which the defences of absolute and qualified privilege are available
Introduction of a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period has passed
Action to address libel tourism by ensuring a court will not accept jurisdiction unless satisfied that England and Wales is clearly the most appropriate place to bring and action against someone who is not domiciled in the UK or an EU Member State
Removal of the presumption in favour of jury trial, so that the judge would have a discretion to order jury trial where it is in the interests of justice
Issues for consultation which have not been included in the draft Bill at this stage, but which the MoJ seeks views on, are:
Responsibility for publication on the internet. The paper seeks views on whether the law should be changed to give greater protection to secondary publishers such as internet service providers, discussion forums and (in an offline context) booksellers, or alternatively how the existing law should be updated and clarified.
A new court procedure to resolve key preliminary issues at as early a stage as possible, so that the length and cost of defamation proceedings can be substantially reduced.
Whether the summary disposal procedure – where the court has the power to resolve a case quickly if either the claimant or respondent has no reasonable chance of success – should be retained, and if so whether improvements can be made to it.
Whether there should be wider use of the court’s powers to order publication of a summary of its judgment in defamation cases, particularly where a suitable apology or correction cannot be agreed upon by both sides.
Whether further action is needed beyond the proposals in the draft Bill and the introduction of a new court procedure to address issues relating to an inequality of arms in defamation proceedings, including whether any specific restrictions should be placed on the ability of corporations to bring a defamation action.
Whether the current provisions in case law restricting the ability of public authorities and bodies exercising public functions to bring defamation actions should be placed in statute and whether these restrictions should be extended to other bodies exercising public functions.
The draft Bill relates to the law in England and Wales only.
For some insightful commentary and legal analysis, I commend readers to the following:
David Allan Green’s article in The New Statesman: http://www.newstatesman.com/blogs/david-allen-green/2011/03/draft-bill-libel-claim;
Inforrm’s Blog: Opinion: “The Government’s Defamation Bill – Insufficiently radical?” Part 1 – Alastair Mullis and Opinion: “The Government’s Defamation Bill – Insufficiently radical?” Part 2 – Alastair Mullis.
Those familiar with the current “libel tourism” debate will want to follow two recent Canadian decisions: Black v. Breeden, 2010 ONCA 547 (see my posts here and here) and Banro Corporation v. Les Éditions Écosociété Inc., 2010 ONCA 416 (per Weiler, Blair and Rouleau JJ.A) (see my previous post here ), both of which will be argued in the Supreme Court of Canada next week.
If you missed it, check out my podcast interview with Charon QC (Mike Semple Pigott): Lawcast 180: Antonin Pribetic on Libel tourism, Freedom of Speech and social media).
South of the 49th parallel, the U.S. “Securing the Protection of our Enduring and Established Constitutional Heritage Act” (viz. SPEECH Act” s. 3518) which President Obama recently signed into law represents a retreat from judicial comity, back to judicial isolationism. The SPEECH Act is essentially a blocking statute that restricts enforcement of foreign libel judgments (particularly English libel judgments) in the U.S. rendered against American publishers, journalists and academics unless they meet American First Amendment standards of free speech and freedom of the press.
The irony is that rather than an English libel judgment, it seems that a Canadian libel judgment, will be the first to be challenged under the SPEECH Act.
In Mina Mar Group Inc. v. Divine, 2011 ONSC 1172 (CanLII) the Plaintiffs, Mina Mar Group Inc., a Toronto-based investor relations services, and its principal Miro Zecevic, successfully moved for a partial default judgment for internet defamation against New Jersey based Defendants, James Divine and Catherine Divine, both of whom were noted in default. Under the Ontario Rules of Civil Procedure, pursuant to rule 19.02 (1), a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim. The nature of the action is summarized by Justice Perell as follows:
 Beginning in 2006 and continuing to date, by profuse postings on Internet bulletin boards and websites, particularly the website of InvestorsHub.com Inc., the Defendants, James Divine and Catherine Divine have frequently defamed Mino Mar and Mr. Zecevic. The Defendants’ postings, which are authored under the pseudo name of “Stratey” describe the plaintiffs as thieves, crooks, sham artists, liars, dishonest, corrupt, incompetent, and immoral.
 As a consequence of the defamatory statements, Mina Mar has lost clients and opportunities for new clients.
 Mina Mar and Mr. Zecevic demanded that the Divines withdraw their postings and apologize, but the Divines refused to do so.
 On this motion for a partial default judgment, reserving their right to claim special damages (its pecuniary losses) by setting the action down for a trial for an assessment of their business and other losses, Mina Mar and Mr. Zecevic seek general damages, punitive damages, and injunctive relief.”
After a comprehensive review of Canadian damage awards for internet defamation, Perell J. awarded the Plaintiffs $50,000 for general damage and if the plaintiffs abandon their outstanding claim for special damages, held that an award of $25,000 for punitive damages would be appropriate. The court also granted a permanent injunction restraining the Defendants from disseminating, posting on the Internet or publishing further defamatory statements concerning the plaintiffs, plus costs.
According to one report, the co-defendant, InvestorsHub.com Inc. (“iHub”), which owns and operates the website where the defamatory statements were posted, settled with the plaintiffs by posting an apology:
A December 2010 letter from InvestorsHub to Mina Mar, posted on Mina Mar’s website, states: “In compliance with the Judgment of the Ontario Superior Court, InvestorsHub.com Inc. (‘IHub’) hereby apologizes to Mina Mar Group Inc., Mina Mar Group Inc. (of the USA) and Miro Zecevic for defamatory postings authored by third parties not affiliated with iHub that appeared on the iHub website.”
Rather than challenging the Ontario court’s jurisdiction at first instance, iHub previously brought a declaratory judgment action against Mina Mar and Zecevic in Florida which was dismissed without prejudice for lack of subject-matter/diversity jurisdiction.
In a subsequently filed federal complaint, iHub, along with its former president Robert Zumbrunnen and former employee, Matthew Brown, accused Mina Mar Canada (and its US affiliate) and Zecevic of engaging in “libel tourism” , alleging that “Canada provides less protection for free speech than United States and Florida law.”. The Canadian defendants have filed an Answer and Affirmative Defenses denying the libel tourism allegation and asserting estoppel arising from the prior settlement and online apology.
Given that a Florida court has previously declined jurisdiction over the parties and Canadian standards for freedom of speech are likely within the purview of First Amendment standards, the failure to challenge the Ontario court’s jurisdiction at first instance may prove fatal for iHub. Hopefully, the Florida court will make a pronouncement of whether the SPEECH Act First Amendment requirements have been met by a Canadian court.
For a recent Ontario appellate decision involving a multi-jurisdictional defamation action, see Paulsson v. Cooper, 2011 ONCA 150 (CanLII) (note: I was co-counsel on the original motion and our firm has been re-retained).