(As I’ve been saying for how long…?)
Read the whole thing, from the Ontario Civil Liberties Association:
The common law of defamation has survived from criminal statutes of a past era that were designed to protect nobility from criticism.
It is the only common law tort (or cause of action) where damages—actual damage to reputation—and malice (malice of defamation) are assumed, and need not be proven in court.
The result is a presumption of guilt—regarding falsity of the expression, malice of the defendant, and damages to the plaintiff—that can only be overturned if the defendant can prove one of the available defences, which are strictly limited and codified.
As such, and given the further explanations below, the tort of defamation (libel and slander) is incompatible with the right to free expression enshrined in the Canadian Charter of Rights and Freedoms and should not have standing in Canada in modern times.
Here, OCLA stands with legal scholars who have argued that the presumptions of falsity, malice, and damages should be abolished. (…)
All of this is exacerbated by the fact that there is no practical need for the tort of defamation because there are other common law torts that sufficiently protect against unjustified attacks to personal reputation, and which correctly require proof of harm and of malice. These include the torts of: malicious falsehood, intentional infliction of mental suffering, conspiracy to harm, and so on. (…)
Furthermore, defamation law is critically flawed by being heavily and structurally biased in favour of those with money and power, both individuals and corporations, including individuals supported by powerful institutions. The most obvious source of bias is that rich individuals are most able to afford litigation, using the most successful lawyers. (A defamation lawsuit can cost $1 million to litigate.)
In addition, damages are awarded in proportion to the “value” of the plaintiff’s reputation, as perceived by the judge; rich and powerful individuals are judicially determined to have reputations of high monetary values needing large reparations when found to be damaged. (…)
There should be no room whatsoever for the tort of defamation in a free and democratic modern society. With such a malleable tool in the hands of human judges and juries, most trials turn out to be exercises in punishing the insolent, protecting the powerful, cooling the mark out, removing the politically incorrect, reinforcing society’s taboos, and gauging establishment postures on the controversies of the day.
And those are just the cases that go to trial, and/or are selected for appeals, not the great majority of cases in which the defendants are pressured and intimidated into settlements.
Thanks to Connie and Mark for linking to this.
As some of you know, following their massive lose in a libel case, the FreeDominion blog has been forced to shut down for reasons outlined here.
