“Sticks and stones may break my bones, but words will never hurt me.”-Anonymous (idiom, but probably the words of the first kid ever picked on in a playground)
A recent post by John Gregory (General Counsel, Policy Division Ministry of the Attorney General (Ontario) over at slaw.ca entitled “Privacy and Defamation” discusses defamation law reform in Britain and quotes Sir Alan Beith, MP (UK):
““It won’t be possible to reform the law of defamation without ensuring there is some protection for privacy. You can’t wholly separate them.” Sir Alan Beith, MP (UK). Story here.”
Gregory continues with the following insight,
“Sir Alan was likely thinking (I had never heard of the man until this morning, so I have no special access to his mind…) that reform would move in the direction of narrowing liability, i.e. permitting more things to be published about people than the current law of defamation would allow (without liability). The ‘chill’ of libel law would be reduced. This is generally considered a good thing for freedom of expression, democratic debate, the people’s right to know, and so on.
However, that kind of reform exposes people to greater harm to their reputations. After all, as Nicholas Bohm pointed out, defamation is about unwelcome untruths. (Part of the chill of libel law comes from the difficulty of proving the truth of true statements, mind you, and reform often excuses publication of material that cannot be proved to be true but that still may be true.)
It may help balance people’s feelings of increased exposure to attacks on their reputation in the public interest if they have greater means of protecting exposure of ‘unwelcome truths’ where there is no legitimate public interest in those truths.
So: reform defamation law to increase the availability of public interest information but reform (create) privacy law to decrease the availability of private interest information. They go hand in hand, both logically and as a marketing strategy.
Does that make sense?”
The answer is….yes, no and maybe.
Yes, there is a balancing act between free speech and dissemination of public interest information, on the one hand, and increased privacy concerns, on the other.
In today’s post, CharonQC asks “Is twitter killing our law? Is blogging killing our law?” and concludes in the negative, but notes:
“The chilling effect of a libel letter is known to many. Libel tourism, libel reform and the whole issue of a right to privacy is very much in the frame for debate and law reform. It is widely believed that there at least three superinjunctions out there protecting the commercial interests / private lives of leading footballers granted in recent weeks / months. I don’t know. In fact, none of us are supposed to know. That is the point of a superinjunction.”
Ah, the superinjunction. The “stealth bomber” litigation weapon of UK defamation lawyers representing the super-rich corporations, privileged politicians and spoiled celebrities. Frankly, publication bans are always suspect in any legal system that touts itself as upholding democratic principles of accountability, transparency and equal access to justice.
No, there is no right to public information if that information is untrue and damaging to one’s reputation.
The Fifth Estate in Canada has no legally recognized code of journalistic ethics. In the recent decision of Grant v. Torstar Corp., 2009 SCC 61  3 S.C.R. 640, (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), while the Supreme Court of Canada incorporated the “Defence of Responsible Communication on Matters of Public Interest” (also referred to as the “responsible journalism” defence ) into the law of defamation in Canada, the Court observed that:
“ A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.” [emphasis added]“
Is the problem “libel tourism”, which is essentially “forum shopping” in the defamation law context? A powerful case has been made beyond our shores for libel reform in the UK‘ says yes,
in a recent post, ‘
“…launched a blistering attack on the Campaign for Libel Reform.
Hoffman pointed out that American Rachel Ehrenfeld, who had been sued by Saudi/Irish citizen Sheikh Khalid bin Mahfouz in London over a book that was never intended to be published in the UK, was an acquaintance of leading American neoconservative Richard Perle. Ergo, the clamour for reform was a American, neoconservative proposition. If you liked reform, you probably loved George Bush.
It was an odd attack to make, all the more curious for the fact that Hoffman characterised the campaign as being built on the case of Don King v Lennox Lewis, a case not mentioned once in the debate before that point.”
It is not surprising that “libel tourism” has gained so much traction among American and UK legislators, not to mention traditional media, online journalists and political bloggers, but is “libel tourism” really a problem? Not so, according to Out-Law.com which reports that “Libel tourism is a very rare thing in UK courts, finds study“:
“Just three out of 83 defamation cases reported in the UK in the past year involved libel tourism, according to a study. Concern about foreign residents suing foreign publishers in UK courts greatly outweighs its actual occurrence, the figures suggest.
The US has since passed a federal law to prevent libel judgments from UK courts being enforced in the US. The UK Government has also pledged to reform libel laws to restrict forum shopping. But Sweet & Maxwell’s research suggests that the concern outweighs the practice.
The research also found that the total number of reported defamation cases in 2009-2010 had risen by 6% from 78 in 2008-2009. This was led by an increase in claims from celebrities and sports stars, it said, which nearly trebled in that period, from 11 to 30.
According to Sweet & Maxwell, that rise may be the result of a closer working relationship between agents and managers of celebrities and law firms that specialise in bringing defamation claims against the media.
“The more widespread use of digital media monitoring services of print and online media by the managers of celebrities give a more reliable record of when the media might have published damaging material,” said Sweet & Maxwell. “The media has also complained that the use of ‘no win no fee’ agreements encourages defamation claims against the media that would not normally have been launched.”
I wager that Sweet & Maxwell’s research study will not be widely reported.
So then, are we heading towards a jurisdictional “Cold War” between the United Kingdom and the United States over free speech and online reputation? Will Canada be caught between the Scylla of US First Amendment protectionism and the Charybdis of British libel liberalism?
Maybe, but not likely.
The U.S. approach to protecting free speech, enshrined in the First Amendment , is considered by many academics, political writers and libertarians as the Bretton Woods standard for protection of individual freedom of expression. This is the cornerstone of representative democracy, or so one is led to believe. Yet, even in the United States, there are limits to what one can say about another in the court of public opinion. Many commentators and pundits overlook the oft-quoted metaphor of Oliver Wendell Holmes, Jr. in Schenck v. United States, 249 U.S. 47 (1919):
- The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
The operative word is “falsely shouting fire in a theater and causing a panic.””
Truth is an absolute defence to a defamation claim. Yet, absolutes are as rare in nature as they are in law or philosophy:
“It will never be possible by pure reason to arrive at some absolute truth. ~Werner Heisenberg, Physics and Philosophy
What is beyond the grasp of my limited understanding is the level of conceit and deceit in those who think that passing a law shielding US citizens from “libel tourism” or “forum shopping” in foreign jurisdictions will stem the tide of internet defamation lawsuits. The much lauded “Securing the Protection of our Enduring and Established Constitutional Heritage Act” (viz. SPEECH Act” s. 3518) is an odd parochial response to attempting to protect First Amendment rights. What many do not point out is that the SPEECH Act is not a panacea for blocking enforcement of subjectively perceived frivolous defamation judgments. Take note of the summary of the SPEECH Act that President Obama recently signed into law:
Securing the Protection of our Enduring and Established Constitutional Heritage Act or SPEECH Act – Prohibits a domestic court from recognizing or enforcing a foreign judgment for defamation unless the domestic court determines that: (1) the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the First Amendment to the U.S. Constitution and by the constitution and law of the state in which the domestic court is located; or (2) even if the defamation law applied in the foreign court’s adjudication did not provide this much protection for freedom of speech and press, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the First Amendment to the U.S. Constitution and the constitution and law of the state in which the domestic court is located. Prohibits a domestic court from recognizing or enforcing a foreign judgment for defamation against the provider of an interactive computer service unless the domestic court determines that the judgment would be consistent with provisions of the Communications Act of 1934 affording protection for private blocking and screening of offensive material, if the information that is the subject of the judgment had been provided in the United States. Specifies circumstances for removal by a defendant to the appropriate U.S. district court, without regard to the amount in controversy, of any action brought in a state domestic court to enforce a foreign judgment for defamation. Provides that any U.S. person, against whom a foreign judgment is entered on the basis of the content of any writing, utterance, or other speech by that person that has been published, may bring an action in district court for a declaration that the foreign judgment is repugnant to the Constitution or laws of the United States. Expresses the sense of Congress that, for purposes of pleading a cause of action for a declaratory judgment, a foreign judgment for defamation or any similar offense shall constitute a case of actual controversy under the federal judicial code.
Note that the legal test is two-fold. The first branch of the SPEECH Act test requires a US court to undertake a comparative law analysis: suffice it to say that no other foreign common law jurisdiction, including the UK, Canada or Australia, will pass muster. It is the second branch that presents a more rational basis for the blocking legislation. If the foreign defamation judgment involved allegations proven to have harmed the reputation of the plaintiff based upon US First Amendment standards, then it will still be enforceable against the US defendant.
The SPEECH Act is anathema to comity. Then again, comity is strangely of little moment, even in an era of globalization and internet virality. Just ask the Ontario Court of Appeal who in the 2005 internet defamation case, Bangoura v. Washington Post (2005), 258 D.L.R. (4th) 341 (Ont. C.A.), at para. 48, leave to appeal to S.C.C. refused,  S.C.C.A. No. 497, declined assuming jurisdiction over the US based media defendants, and held:
 The motion judge’s conclusion does not take into account that the rule in New York Times v. Sullivan is rooted in the guarantees of freedom of speech and of the press under the First Amendment of the U.S. Constitution. In any event, the reality is that American courts will not enforce foreign libel judgments that are based on the application of legal principles that are contrary to the actual malice rule. Although the Supreme Court of Canada has rejected the rule for perfectly valid reasons, it is, in my view, not correct to say that the American courts’ unwillingness to enforce a Canadian libel judgment is “an unfortunate expression of lack of comity”. Canada and the U.S. have simply taken different approaches to a complex area of the law, based upon different policy considerations related to freedom of speech and the protection of individual reputations.
 The Supreme Court of Canada has recognized that Canadian courts may refuse to enforce a judgment of a foreign court which is deemed to be contrary to the Canadian concept of justice. In Beals v. Saldanha, supra, Major J., writing for the majority, said at para. 71:
The third and final defence is that of public policy. This defence prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice. The public policy defence turns on whether the foreign law is contrary to our view of basic morality. As stated in Castel and Walker, supra, at p. 14-28:
…the traditional public policy defence appears to be directed at the concept of repugnant laws and not repugnant facts.
Given the centrality of freedom of speech to the United States Constitution, it could be argued that an American court’s refusal to recognize a Canadian judgment based on principles divergent from New York Times v. Sullivan would fall into the category of repugnant law rather than repugnant fact.”
Still, the Ontario Court of Appeal did assume jurisdiction recently in Black v. Breeden, 2010 ONCA 547 despite the fact that Lord Black of Crossharbour had not lived in Canada for a number of years, having renounced his Canadian citizenship in order to be granted a peerage. The conflicting results in Bangoura v. Washington Post and Black v. Breeden can only be reconciled, if at all, by noting the underlying rationale for defamation actions. In Bangoura v. Washington Post., the Court refused to take jurisdiction over the defendant, an American newspaper, at the instance of a plaintiff who at the time of the alleged defamation was neither a Canadian citizen nor resident. In Black v. Breeden, the Court concluded that while Conrad Black may no longer be a resident of Canada, he established his reputation there and that is where he seeks to vindicate it.
This is why the SPEECH Act is ill-conceived. It fails to focus on the real issue in internet defamation claims: JURISDICTION. Either a foreign court has personal or subject-matter jurisdiction over a US defendant, or it does not. American judges, like their common law counterparts, are presumably well versed in conflict of laws or private international law principles. In any event, just because the SPEECH Act raises a shield against foreign defamation judgments that either do not meet American constitutional or defamation law standards, does not mean that the US defendants necessarily can safely ignore such defamation actions. After all, chances are that more than a few Americans have assets outside of the geographical bounds of the 50 States.
Are we asking the right questions. Is the issue what right do we value most? Our right to speak freely or our right to protect our reputation? Or is something more fundamental at stake: the end of privacy?