Archive for the ‘Defamation Law’ Category

Hilary Young, “Adding Insult to Injury in Corporate Defamation Damages”

September 3, 2013

Hilary Young (University of New Brunswick – Fredericton – Faculty of Law) has posted “Adding Insult to Injury in Corporate Defamation Damages”. Here’s the abstract:

The law of defamation treats corporations almost identically to natural persons. In most common law countries, corporations may bring defamation actions, and the elements are the same for corporate plaintiffs as for natural person plaintiffs, as are the defences. So too, are the principles for awarding damages.

Both people and corporations have valuable reputations worthy of legal protection. However, given the significantly different effect of reputational injury on humans than on corporations, the principles applied in quantifying damages to each should differ. Aggravating factors relating to emotional injuries should not be considered in assessing reputational injury to corporations, because corporations cannot suffer such injuries. Specifically, I focus on the relevance to the quantification of damages of: a) the defendant’s failure to apologize; b) the defendant’s malice; and c) the aim of vindicating reputation. Examples are drawn primarily from Canadian law but also from the laws of other common law countries.

The article first argues against treating a defendant’s failure to apologize to a corporation as a factor aggravating damages. The only relevance to a corporation of an apology is as a form of setting the record straight. Thus, an apology may mitigate damages but a failure to apologize will often have no effect on damages. Yet the law treats a failure to apologize as aggravating damages.

Similarly, the defendant’s malice is considered a factor aggravating damages, but since corporations cannot be upset, embarrassed or insulted, it is not clear that malice should be relevant to calculating their compensatory damages.

Finally, courts should no longer award damages in order to vindicate corporate reputation. The interest in human dignity may justify the vindicatory goal of defamation law. However, given that corporations have no dignity to protect, and given a number of problems associated with attempting to award damages to vindicate reputation, it is not justifiable to award corporations damages to vindicate their reputations.

Download a pdf copy of the paper via SSRN here.

Ont. C.A.: Libel and Slander Act notice and limitation periods apply to internet libel; “single publication” rule rejected

June 18, 2013

The Court of Appeal for Ontario judgment in Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405 (Ont. C.A.) (“Shtaif“) confirms that the six-week notice requirement and three-month limitation period under the  Libel and Slander Act, R.S.O. 1990 c. L.12 (the “Act”), not the 2-year general limitation period in s. 4 of the Limitations Act, 2002, S.O 2002 c.24, governs libel actions based on online versions of newspaper articles. (more…)

McAlpine v. Bercow and a New Era of ‘Twitter Chill’

May 24, 2013

The decision of Mr Justice Tugendhat in McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013) ["McAlpine"]  is a stern admonition to Twitter users about the perils of practising comedy without a license.

Seriously, in my view, the UK court’s  judgment will have a chilling effect on free speech on Twitter and will likely devolve into an era of social media self-censorship for Twitter users, particularly in the UK. A form of libel chill, or, perhaps “Twitter Chill”.

It also highlights the legal chasm that exists between the American and UK judicial approaches to balancing freedom of expression and protecting reputation. The decision also raises the spectre of a “popularity metric” to determine whether the alleged maker or republisher of the defamatory tweet has gazillions of followers or is just some shlub with 4 followers, three of which are porn bots. (more…)

Mark Donald, “This means war? Baglow v. Smith and online defamation in the blogosphere”

April 17, 2013

Mark Donald  (Student At Law -Thornton Grout Finnigan LLP) has published “This means war? Baglow v. Smith and online defamation in the blogosphere”.

The article comments on the fascinating Baglow v. Smith case and its implications for defamation law in relation to political blogs and online media. It appears to be the only legal paper in existence that references Bob Marley, Thomas Hobbes, Kim Jong-un and the movie “The Untouchables”.

The link to the paper is here.

A link to an introductory summary piece intended for non-lawyers can be found here.

Matthew Lafferman, “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”

March 13, 2013

Matthew Lafferman (JD Candidate, George Mason University – School of Law) has published “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”,  Santa Clara Computer and High Technology Law Journal, Vol. 29, No. 1, 2012. Here’s the abstract:

In Gertz v. Welch, the Supreme Court expanded First Amendment protections to defamation law by requiring a plaintiff who qualified as a public figure to prove a higher burden of proof to recover for damages under a defamation suit. The Court relied on two major rationales to delineate the Gertz doctrine: public figures “voluntarily exposed themselves to increased risk of injury” and had “significantly greater access to the channels of effective communication.” Applying this doctrine to online media poses challenges, specifically when applied to social media platforms. Many scholars have recognized that social media users have equal access to the same basic media features, rendering the Gertz Court’s access-to the-media rationale inapplicable when applied to social media. A 216% rise in defamation suits against Internet users in the last three years alone, due to the recent discovery that most homeowner’s insurance policies cover libel liability, signals an almost inevitable rise in defamation suits that will eventually force courts to face the challenge of applying the Gertz public figure doctrine to social media.

This Comment offers an approach that reconciles the problems of applying the public figure doctrine to social media. This Comment argues that courts should require defendants to overcome certain initial presumptions by clear and convincing evidence before designating a social media user an involuntary public figure or a general public figure. Moreover, when recommending an approach for courts to identify voluntary activity on a social network for limited-purpose public figures, courts should avoid defining mere access to social media as voluntary activity and instead conclude such access is an extension of an individual’s private life. This approach would allow courts to apply much of the currently existing public figure doctrine to social media and help courts avoid the negative legal and policy consequences of abolishing the doctrine altogether.

A pdf copy of the paper is available for download at SSRN here.


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