Alan Borovoy More balance needed between free speech and reputation 19-Jul-1995

Alan Borovoy More balance needed between free speech and reputation 19-Jul-1995

"The real question is not whether it is legally possible to criticize certain government behaviour but whether, in view of the law, it is financially feasible to take the risk." � Alan Borovoy

More balance needed between free speech and reputation

by A. Alan Borovoy
General Counsel
Canadian Civil Liberties Association

It could cost a bundle to speak ill of a government official in this country, if you can't prove the truth of your remarks. At this moment, the Supreme Court of Canada is mulling over a defamation case involving a lower court's damage award of several hundred thousand dollars. The potential precedent could affect the very quality of our democracy.

Here, the target of the alleged defamation was a crown attorney and the statements at issue concerned his duties. If it remains necessary to prove the truth of what is said about public officials in order to avoid a whopping damage claim, silence will often be the preferred option.

How, therefore, can we maintain a vibrant democracy when critics of government officials can be subject to such financial intimidation? Remember, much criticism could well be valid, even if critics don't have the resources to prove their allegations.

In the 1960s, the United States Supreme Court attempted to resolve this problem by adopting a new rule. In order to successfully sue for defamation, American public officials must now prove that their critics spoke with malice, that is, with actual knowledge or reckless disregard of the fact that their statements were false. Not an easy task. In Canada thus far, government officials don't face such hurdles.

Whatever finally happens, we should question certain assumptions that have long influenced Canadian courts in this area. The Ontario Court of Appeal relied heavily on these assumptions in the judgment now under appeal.

Assumption #1 � The current law of defamation "does not stifle criticism of prominent political figures in the conduct of their duties" provided that "the facts ... [are] truly stated".

Here, the court is excessively consoled by what the law, in theory, allows but is inadequately concerned by what people, in practice, will do. The real question is not whether it is legally possible to criticize certain government behaviour but whether, in view of the law, it is financially feasible to take the risk. Since it is often hard for people outside government to uncover the true facts inside government, the courts should not be so complacent.

Assumption #2 � Since it seems difficult for defamed government officials to get redress in the United States, the American rule "would be likely to discourage honest and decent people from standing for public office".

The court cites no evidence for this assertion, but it criticizes the other side for its lack of evidence. To those who contend that the existing Canadian law will muzzle government critics, the court insists that "evidence is required to prove that libel chill exists".

The judgment does not explain this inconsistency about the need for evidence.

Assumption #3 � The American rule inadequately protects the reputations of government officials "by depriving [them] of any legal recourse ... except in those rare cases [of] 'actual malice'".

Despite the rule in their country, American public officials are currently winning plenty of libel cases with hefty damage awards. Moreover, even if the American rule has reduced court action for many government officials, they still have other remedies. People in public life can usually attract media coverage in order to answer their critics. The Ontario court did not even acknowledge the importance or possibility of such redress.

* * * * *

In any event, the American rule is not the only alternative to the Canadian one. In my view, for example, the law should excuse government critics for their defamatory inaccuracies if they have a reasonable basis to believe the truth of what they say. In this way, criticism would be freer but extreme irresponsibility could still be costly � a better balance, in short, between both freedom of speech and personal reputation than either legal system now achieves.

Originally published on the Canadian Civil Liberties Association web site at www.ccla.org/pos/columns/defamation.shtml

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