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C a n a d a 7.
CRIMINAL LIBEL, CIVIL DEFAMATION: SLANDER AND LIBEL Criminal
law is governed by the federal criminal code, which contains the
offense of defamatory libel and blasphemous libel. Defamatory libel
is matter published, without lawful justification or excuse, that
is likely to injure the reputation of any person by exposing him
to hatred, contempt or ridicule, or that is designed to insult the
person of or concerning whom it is published. Everyone
who publishes a defamatory libel that he knows is false is guilty
of an indictable offense and liable to imprisonment for a term not
to exceed five years. The criminal code provides for various defenses
to the offense, such as fair report of judicial and parliamentary
proceedings, fair comment and truth. The proprietor of the newspaper
is liable for the libel unless he proves that the defamatory matter
was published without his knowledge and without negligence on his
part. The
provisions for criminal libel have rarely been used in Canada. However,
in a recent decision by the Supreme Court of Canada, in R. v. Lucas
(1997), the Court upheld the criminal libel provisions as constitutional
limits on the guarantee of freedom of expression. The Court found
that in addition to proving the knowledge of falsity, it is necessary
for the Crown to prove as an element of mens rea that there
was an intent to defame. Given that criminal libel requires knowledge
of falsity and an intent to defame, the Court reasoned that speech
covered by criminal libel is of minimal value, and therefore the
infringement on freedom of expression is justifiable under the Charter. At
civil law, the media is subject to the common law and statutory
law regarding defamation. Defamation is defined as statement which
tends to lower a person in the estimation of rightthinking members
of society generally, or to cause him to be shunned and avoided,
or to expose him to hatred, contempt or ridicule, or to convey an
imputation on him disparaging or injurious to him in his office,
profession, calling, trade or business. There are traditionally
two forms of defamation: libel and slander. Libel is defamation
in a permanent form, such as writing. Slander is defamation by spoken
words or gestures. By statute, defamatory matter broadcasted is
considered as libel. Damages arising from slander must be proved
in court, whereas damages in libel are presumed at law. The
plaintiff must prove that the words complained of referred to him
or her and that they are defamatory. The burden is then on the defendant
to show that the defamation is defensible because it was (i) true;
(ii) consented to by the plaintiff; (iii) privileged; or (iv) fair
comment. There is no special defense available when the matter relates
to a public figure. The defamation statutes provide that damages
in libel may be limited to actual damages proved to be suffered
if the defendant published a qualifying retraction/apology. The
defense of absolute privilege is provided for in the provincial
statutes, allowing publication of matters arising in Parliament
and judicial proceedings and other public meetings. There must be
an absence of malice in order for this privilege to apply. The
defense of qualified privilege arises at common law, and requires
that the defamatory statement be a fair and accurate report, must
involve a matter of public interest, there must be a moral or legal
duty to publish the defamatory matter and any person receiving the
information must have a valid interest in receiving it. This defense
is also defeated by a finding of malice. While this defense has
been relied upon successfully in a few cases recently, the interpretation
of it by Canadian courts has made it a very difficult test to meet. The
defense of fair comment requires that the comment be on a matter
of public interest, be a fair and honest expression of the author?s
opinion, and include provable facts on which the opinion is based.
This defense is also defeated by a finding of malice.
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