Canadian Defamation Law - Versus US and UK Law

Versus US and UK Law

In general Canadian defamation judgements against Americans are not collectible in the United States under the SPEECH Act, and have to be re-proven in an American court in the state where the defendant resides. The exception may be Quebec which has broad protections for political comment and respects international laws (such as the International Covenant on Civil and Political Rights similar to the US's own First Amendment.

The law of defamation changed rapidly in Canada 2006-2011. Many important issues were clarified and the law changed generally in the direction of US and Commonwealth law. However Canadian law is still generally the most "plaintiff-friendly" libel law in the English-speaking world.

Broadly, Canadians can be held liable by English Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed. They cannot be held liable for opinion, inference, hyperlinking without explicit agreement with the content, reportage when this is based on honest research and journalistic ethics. Plaintiffs need not prove falsity, malice or damages. Politicians can, and do, sue including during elections for political advantage or to silence critics or accusers. Evidence can be gathered by spies representing themselves falsely in private conversations.Defendants, once accused, are prima facie liable until they prove themselves innocent (reverse onus). Anonymous persons can be exposed for political comment, even if they are vulnerable and reside in jurisdictions where retribution is likely. . People may be sued from remote jurisdictions if publication can be proven in that remote jurisdiction, which can mean as few as one person seeing the words. By contrast, under English law, a substantial publication is required before a plaintiff can sue a defendant in an English court. Unlike Canada, the UK is also considering substantial reforms in order to ensure that judgements remain enforceable in the US - see also libel tourism and SLAPP.

In Dan Burnett's detailed comparison of Canadian laws with US and Commonwealth laws prior to the 2006-2011 reforms, he summarizes the situation:

For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.

Libel law developed in an ancient era which we would today consider backward, tyrannical and repressive. It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established. In Law of Defamation in Canada, Professor Brown notes that the common law of defamation has been described by scholars and judges as “artificial and archaic” and characterized by “absurdities”, “irrationality”, and “minute and barren distinctions” (p. 1-3).

While social values and legal concepts have evolved dramatically of the past 200 years, the common law of libel in Canada remains startlingly unchanged.

Accordingly, most pre-2006 commentary on defenses and tactics remains valid, although the more recent case law and constantly changing standards require defamation lawyers (on both sides) to study almost every recent case.