Archive for the ‘defamation’ 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…)

Jorge R. Roig on “Emerging Technologies and Dwindling Speech”

June 7, 2013

Jorge R. Roig (Charleston School of Law) has posted “Emerging Technologies and Dwindling Speech”, University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013 (Forthcoming).  The abstract reads:

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.

Download a copy of the paper via SSRN here.

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.


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