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More than a century ago defamation law was mockingly derided by commentators as “old and out of date, moss-covered with age,”[1] “absurd in theory, and very often mischievous in its practical operation,”[2] and “infected with the foolish conceits, absurd paradoxes, superstition, and artificial reasoning of a semi-barbarous age.”[3] Indeed this “enfant terrible of the [common] law,”[4] whose long and convoluted historical journey can be traced back from the modern democratic and constitutional context to the Roman delict of injuria via the Star Chamber in England,[5] has for many decades been the subject of intense academic and judicial scorn.[6] Yet, despite being a rather ungainly composite of two sister torts—libel and slander—defamation law has persisted.

Notwithstanding its evident longevity, one would be forgiven for wondering whether this cause of action, which once served the decidedly medieval purpose of averting blood duels among easily inflamed British noblemen,[7] might be on a collision course with the emerging communications technologies of the digital age—especially the Internet. For, as we will see, the medium of an allegedly defamatory communication has always been—and indeed continues to be—one of the most important determinants of how a plaintiff in a common law defamation action will fare in meeting the requisite elements of the tort, fending off any defences that the defendant might raise, and collecting a significant damage award at the close of proceedings. It behooves us to ask: how will a tort, that over a century ago was regarded as being “three hundred years behind the age”,[8] rationally assimilate communications technologies that could have scarcely been imagined even twenty-five years ago?

Though the jurisprudence is yet in its infancy, some alarming trends have already begun to emerge in the common law cases involving allegations of defamation using the Internet, sometimes referred to as “cyber-libel”.[9] Chief among these has been a tendency on the part of the courts to rely upon generalizations about the Internet that paint the medium as being uniformly dangerous to individual reputation. In this regard, the refrain that has peppered the emerging jurisprudence has been that the Internet is “instantaneous, seamless, interactive, blunt, borderless and far-reaching” and “potentially a medium of virtually limitless international defamation.”[10] Fuelled by these generalizations, Canadian courts have seemed to view their role in cyber-libel actions as that of a final bulwark against the defamatory excesses of those members of the general public who might abuse the tremendous new power entrusted to them by the Internet. This has led the courts to hold that when defamatory words are transmitted using the Internet, the availability of any qualified privilege that would otherwise have immunized the defendant from liability under traditional defamation principles will be vitiated, and will substantially increase any resulting award of damages.

These aspects of the emerging cyber-libel jurisprudence are of concern because they disrupt the delicate balance between the two competing constitutional values or goals that underpin the modern tort of defamation: protecting reputation (including personal dignity) and securing freedom of expression.[11] By treating the vast and diverse world of Internet communications as an undifferentiated and uniformly menacing whole, the courts improperly favour plaintiffs in most cyber-libel cases to the detriment of vibrant online free expression, and devalue individual dignity and reputation in cases involving other, less-feared media.

In order to fully appreciate the nature of the emerging cyber-libel jurisprudence, it is important to understand that it is actually the product of a long-standing, and unfortunate, analytical methodology that has woven itself into the very fabric of defamation law. This methodology, which can be traced back to the centuries-old distinction between libel and slander, flows from a judicial tendency among common law judges to attach disproportionate legal significance to the medium through which allegedly defamatory statements were made. Courts have historically relied upon crude generalizations about particular media and have tended to categorize them as being either extremely dangerous or presumptively unthreatening to reputation. In this calculation, the side of the fence that a particular medium fell was, and in many jurisdictions continues to be, crucial for potential plaintiffs since the legal consequences for being categorized one way or the other would often determine the outcome of their cases. Though the direct significance of the widely reviled libel-slander dichotomy has been dampened somewhat in Canada—at least in those provinces that have eliminated it by statute[12]—the judicial tendency to rely on generalizations characterizing new modes of communication as being tremendously pernicious persists in the emerging cyber-libel jurisprudence and has expressed itself through rulings dealing with the qualified privilege defence and the calculation of damages.

The link between judicial hostility toward the use of the Internet in emerging cyber-libel case law and the historical common law tendency to place too much emphasis on menacing caricatures of new communications media, is illustrated by a comparison with the civil law approach to the law of defamation in the province of Quebec—for cases both involving the Internet as well as in general. The law in this jurisdiction developed beyond the long shadow of the libel-slander dichotomy and pays scant attention to the particular medium in which defamatory imputations happen to have been conveyed. Rather, in each case the civil law courts look to the broader context in order to determine both liability and the quantum of damages. The essence of this approach, which can be easily transplanted into the common law context, represents the key to maintaining the appropriate balance between the two competing constitutional values in cyber-libel actions and in all defamation cases.

In Part II of this paper, I will attempt to elucidate the distrustful judicial stance toward Internet communications that has animated the Canadian common law cyber-libel jurisprudence to date. In Part III of the paper, I will argue that this approach is unjustifiably disruptive to the proper balance between free expression and protection of reputation. In Part IV, I will seek to demonstrate how the modern common law approach to cyber-libel is actually the product of an impoverished analytical methodology that has governed defamation law for centuries. In Part V of the paper, I will canvass the law of defamation in Quebec so as to draw the unwise aspects of the common law into sharper relief and to offer a potential avenue for reform. In Part VI, I will detail the contours of a more nuanced and less categorical approach to defamation adjudication in the digital age that takes inspiration from the civil law approach, and more appropriately reconciles freedom of expression and the vindication of personal reputation. Finally, in Part VII I will briefly discuss the Supreme Court of Canada’s recent decision in Grant v. Torstar Corp., which may mark the beginnings of a laudable turning point in the Canadian common law approach to cyber-libel along the lines advocated in Part VI.[13]

I. The Canadian Common Law Approach to Cyber-Libel

The common law Canadian courts that have to date been faced with allegations of defamation over the Internet, have considered such communications to be “indiscriminate” and akin in many respects to defamatory statements made on broadcast radio or television. As a result, the present state of the law appears to be that the qualified privilege defence will rarely, if ever, be available in cases of cyber-libel, and resulting damage awards will be greatly increased where defamation is proven.

A. Defamation over the Internet and the Qualified Privilege Defence

The defence of qualified privilege seeks to carve out a zone of communication within which, for reasons of general social utility, the “protection of reputation must yield to open and free discussion.”[14] The rationale for this defence is that, due to the public benefit in encouraging certain kinds of communications to be made, “no matter how harsh, hasty, untrue, or libellous the publication[,] ... the amount of public inconvenience from the restriction of freedom of speech or writing [if an action for defamation was available] would far outbalance that arising from the infliction of private injury.”[15] The legal effect of making out a claim for qualified privilege is that the inference that the words were published with malice is rebutted, which arises whenever a plaintiff proves that the defendant published defamatory words about them to a third party.[16]

It is important to note that qualified privilege does not attach to the impugned communication itself. Rather, the privilege attaches to the occasion at issue.[17] An occasion will be regarded as being privileged if it involves a communication made by a person in the discharge of a public or private duty and is communicated to an audience that has some corresponding interest or duty to receive the statement.[18] Such duties or interests (the categories of which are not closed) may be personal, social, business-related, financial, moral, or legal.[19] Classic examples of privileged occasions include the provision of employment references, business and credit reports, and complaints to police, regulatory bodies, or other public authorities.[20]

The privilege associated with a particular occasion will be lost if the statement is not commensurate with the occasion.[21] This will arise if the content of the information or the manner in which that information was communicated was not reasonably appropriate for the occasion.[22] For example, if the words complained of were published to the public generally or, as it is sometimes expressed, “to the world”,[23] the qualified privilege will generally have been exceeded since it reached a large number of recipients who did not have the requisite interest in receiving the communication.[24] In this regard, statements communicated using certain media have been branded by courts and commentators as necessarily representing communications “to the world”. Citing a number of lower-court authorities from the 1970s,[25] Professor Brown maintains that newspapers, radio, and television publish information “indiscriminately” and must therefore be regarded as being publications “to the world” in respect of which the qualified privilege defence will be unavailable.[26]

The first case in Canada to directly deal with the availability of the qualified privilege defence in a cyber-libel action was Christian Labour Association of Canada v. Retail Wholesale Union, a decision by the British Columbia Supreme Court.[27] In this case, Justice Rice was faced with an application by way of summary trial to dismiss a defamation action. The underlying facts were not in dispute and the two parties were both unions with a history of competing for members. Statements alleging that the plaintiff was a “rat union” in the habit of signing substandard agreements were posted on the defendant’s website and remained online for about thirteen months. The defendant’s membership was about 2,300 and the total number of visits to the impugned page was estimated to be about 530. The parties were not able to provide conclusive evidence as to the identity of those that had accessed the posting, so it was unknown whether it had been viewed by individuals other than members of the defendant union to whom the message was directed. The defendant had not put in place any access controls such as user ID numbers or passwords that would have restricted the ability of non-union members to view the page.[28]

The parties agreed that the words complained of were defamatory. They also agreed that the defendant’s members had an interest in receiving the union news such that the communication was made on an occasion of qualified privilege. Finally, the parties agreed that the general public did not have any legitimate interest in accessing the defamatory message.[29]

The only question to be determined by Justice Rice on the summary trial application was whether the availability of the qualified privilege defence had been lost by virtue of the fact that the impugned publication had been posted on the defendant’s website. Justice Rice concluded that it had indeed been lost and, in arriving at this conclusion, the court focused on the absence of access controls to the defendant’s website. On that basis, Justice Rice felt bound to conclude that “probably a significant number of those who accessed and presumably read the message were not within the group of interested persons entitled to receive the information.”[30] Since the defendant was unable to adduce compelling evidence explaining why a posting on a website without restrictions was “reasonably necessary” under the circumstances, the court found that the qualified privilege associated with the occasion had been lost.[31]

The court in Christian Labour Association seemed to accept the basic proposition espoused by Professor Brown that certain media, such as radio and television, transmit publications in an “indiscriminate” way such that the qualified privilege defence will generally be lost when employed. Indeed, immediately preceding the court’s analysis of the impugned web page, Justice Rice cited Professor Brown’s views on the availability of the qualified privilege defence in cases of “indiscriminate publications”[32] and lamented that “there is no authority that either counsel or I could find on this issue where the medium was a website.”[33] Ultimately, Justice Rice implicitly concluded that a web posting that is not protected by strict access controls does indeed represent an “indiscriminate” publication akin to a broadcast on radio or television, and ruled accordingly.

The court’s reasoning in Christian Labour Association was more recently endorsed by the Alberta Court of Appeal in Angle v. LaPierre.[34] This case involved a posting on a website devoted to critiquing the state of public education in Alberta. The posting was found by the trial judge to have been defamatory of both the defendant teachers and their union. In curtly dismissing the availability of the qualified privilege defence the Court of Appeal cited Christian Labour Association and did not even consider, as Justice Rice had, whether there was any evidence regarding the number or identity of those who would have likely visited the site. Rather, the court accepted an analytical framework pursuant to which statements “to the world” that are made using “indiscriminate” media such as television or radio are automatically disqualified from the protection of the qualified privilege defence. While it did not say so explicitly, the court appeared to suggest that any publication on the Web will be found to be “excessive”,[35] such that the qualified privilege defence will be unavailable unless it can be shown that various access controls limiting the scope of publication were either employed or were practically unreasonable to have been employed under the circumstances.

By equating all web publications—no matter how obscure in nature—with “indiscriminate” broadcasts such as traditional television or radio, the courts in Christian Labour Association and Angle effectively eviscerated the qualified privilege defence in respect of almost any posting made on the Web. This is so since the vast majority of online publications are not protected by overt access controls of any kind and are thus open to being labelled by the courts as being “indiscriminate.”

B. Defamation over the Internet and the Calculation of Damages

With regard to the calculation of general damages in a defamation action, these are presumed from the very publication of the defamatory statement itself.[36] However, in determining the quantum of general damages, courts do not treat all defamatory publications alike. Some correlation between the severity of the damage to the reputation of the plaintiff and the resulting quantum must be sought. As such, in calculating damages, the trier of fact is required to consider, inter alia, the conduct of the plaintiff, the plaintiff’s position and standing, the nature of the defamatory statement, the mode and extent of publication, and the absence of any retraction or apology.[37]

The leading Canadian case on the calculation of damages in cases of cyber-libel is Barrick Gold, a 2004 judgment of the Ontario Court of Appeal.[38] In this case the plaintiff, a publicly traded mining company and one of the world’s leading producers of gold,[39] successfully obtained a default judgment at trial against the defendants, a private individual and his alter ego corporation. The personal defendant, Mr. Lopehandia, who apparently believed that one of the plaintiff’s gold mines in Chile belonged to him, had engaged in a sustained online campaign over a number of years in which he posted increasingly outlandish and defamatory messages regarding the plaintiff on various online bulletin and message boards.

The trial judge, Justice Swinton, aptly described the defendant’s postings as “emotional, often incoherent, rambling and highly critical.”[40] Mr. Lopehandia accused the plaintiff of, inter alia, fraud, tax evasion, money laundering, manipulation of world gold prices, misrepresentation to government officials, pursuing organized crime, attempted murder, arson, genocide, and crimes against humanity. Since Mr. Lopehandia did not defend the action, the main question to be decided by Justice Swinton was the quantum of damages to be awarded. In this regard, the court awarded $15,000 in general damages and no aggravated or punitive damages. In so ruling, the court reasoned that while the Internet empowered Mr. Lopehandia to spread his many messages around the world, the “emotional and highly intemperate” nature of the impugned statements would not have been taken seriously by reasonable readers.[41]

Though the plaintiff in Barrick Gold had been seeking $250,000 in punitive damages, Justice Swinton declined to make an award under this heading. The court noted that in considering whether to award punitive damages, various factors must be examined including the level of blameworthiness of the defendant's conduct, the financial or other vulnerability of the plaintiff, and the need for deterrence.[42] With regard to blameworthiness, the court noted that Mr. Lopehandia had persisted in his “conduct for a lengthy period of time, despite demands from Barrick that he desist.”[43] However, the court found that this factor was mitigated by the “emotional and unreasoned tenor” of the messages and the fact that “no reasonable business person or investor” would have taken him seriously.[44] With regard to vulnerability, Justice Swinton found that the plaintiff was not vulnerable. To the contrary, the court held that “[t]his is not a case where the defendant is abusing power - indeed, the powerful party here is the plaintiff.”[45] Finally, in declining to award any punitive damages, Justice Swinton held that an award of $15,000 plus costs was a sufficient deterrent “in the case of most individuals sued for libel by a corporate plaintiff.”[46]

On appeal, the plaintiff was successful in setting aside the quantum of damages awarded by the trial judge. In a majority decision written by Justice Blair, the Ontario Court of Appeal increased the general damages awarded to the plaintiff to $75,000 and added $50,000 in punitive damages. The theme that ran throughout Justice Blair’s majority judgment was that defamatory communications made using the Internet are extremely dangerous to the reputations of individuals and corporations such that they should be heavily punished by the courts through the imposition of high damage awards.

Justice Blair first outlined a number of general considerations concerning Internet defamation to guide lower courts’ assessment of damages in future cases. He began by characterizing communications over the Internet as being “instantaneous, seamless, inter-active, blunt, borderless and far-reaching.”[47] Moreover, since such communications are often impersonal and anonymous, Justice Blair considered that there exists “a greater risk that ... defamatory remarks [will be] believed.”[48] In sum, the court concluded that defamation over the Internet had a greater potential to damage reputation as compared with “its less pervasive cousins.”[49] As such, “[t]he mode and extent of publication is ... a particularly significant consideration in assessing damages in Internet defamation cases.”[50] In arriving at these conclusions, the majority of the court quoted extensively and approvingly from an article by Lyrissa Barnett Lidsky[51] in which the author underscores the Internet’s “tremendous power to harm reputation” due to its “extraordinary capacity ... to replicate almost endlessly any defamatory message.”[52]

Having articulated the general principles governing the calculation of damages in cases of cyber-libel, the court then went on to apply those principles to the case at bar. As noted above, this involved an almost tenfold increase in the quantum of damages ordered by the lower court. In increasing the general damages awarded to $75,000, Justice Blair reiterated “the distinctive capacity of the Internet to cause instantaneous, and irreparable, damage to the business reputation of an individual or corporation by reason of its interactive and globally all-pervasive nature and the characteristics of Internet communications.”[53] In awarding $50,000 in punitive damages, the majority of the Court of Appeal held, inter alia, that Justice Swinton had misconceived the balance of power between Mr. Lopehandia and Barrick Gold. In particular, Justice Blair held that:

Barrick is not “the powerful party” in the context of the Internet. The impact of the Internet is to neutralize whatever "power" Barrick may have had, in terms of a communication battle with Mr. Lopehandia. In reality it is Barrick that is vulnerable to publications of this nature, and Mr. Lopehandia who is abusing his power. The Internet is one of the most powerful tools of communications ever invented and ... it is “potentially a medium of virtually limitless international defamation.”[54]

In sum, the analysis employed by the majority of the court in Barrick Gold was focused on the Internet as an extremely dangerous tool that can be abused by individuals of limited means, to ruinously defame otherwise powerful entities such as multinational gold mining corporations.

The majority’s decision in Barrick Gold has become the leading Canadian common law authority on the quantification of damages in cyber-libel cases and has been explicitly followed by a number of lower courts in order to justify increased damage awards.[55]

II. Why This Matters: Constitutional and Normative Implications

The broad generalizations deployed by the Canadian courts in the emerging cyber-libel jurisprudence regarding the grave danger to personal reputation posed by Internet communications, and the stark legal consequences that flow from them, are of concern because such an approach sharply disrupts the delicate balance between freedom of expression and the protection of reputation that lies at the heart of defamation law.

In Hill, Justice Cory, writing for a majority of the Supreme Court of Canada observed that “[t]here can be no doubt that in libel cases the twin values of reputation and freedom of expression will clash.”[56] Justice Cory cited the holding of Justice Edgerton in Sweeney v. Patterson,[57] to the effect that whatever is “added to the field of libel is taken from the field of free debate.”[58] Ultimately, Justice Cory held that the right to free expression and the right to the protection of one’s good reputation are two interests that are “equally important” and must be “carefully balanced” by the courts in crafting the contours of the tort of defamation.[59] By associating draconian legal consequences with a particular media of communication such as the Internet—based on oversimplified caricatures about the dangers to individual reputation posed by those media—the courts ultimately undermine both freedom of expression and the vindication of individual reputation and dignity.

Consider, for example, the characterization by the courts in Christian Labour Association and Angle of all non-password protected web postings as “indiscriminate” publications that necessarily exceed any qualified privilege that a defendant may have had. This rule treats the billions upon billions of pages that make up the Web as alike, despite the well-known variability in the traffic that particular pages enjoy. Whereas some pages (e.g., Yahoo! or Google) might indeed enjoy such prolific and diverse traffic as to make it likely that any qualified privilege is exceeded no matter what the occasion, other pages might cater to such a specific and narrow audience (e.g., the union Web page in Christian Labour Association or the public school education page in Angle) that the privilege is preserved.[60]

It must be recalled that the rationale behind the defence of qualified privilege is that certain species of communication are so necessary to the public welfare that the damage caused by their restriction through defamation actions would outweigh any private harm that might incidentally arise from any occasional instances of defamation.[61] By relying on broad and indefensible generalizations about the “indiscriminate” nature of web postings, the courts throw out the proverbial baby with the bathwater. In cases where the traffic to a particular site is composed almost exclusively of individuals who would have had the requisite interest in accessing a particular posting, the imposition of a blanket rule negating the availability of the qualified privilege defence for all web pages undermines the very purpose for the existence of the qualified privilege defence. This, in turn, disrupts the appropriate balance at the heart of defamation law by over-vindicating reputation at the cost of socially beneficial categories of free expression.

Similarly, the judicial attitude that publication over the Internet, no matter what the context, automatically increases the quantum of damages awarded in a defamation action, is also based on an indefensible over-generalization about the Internet that serves to disrupt the appropriate balance between free expression and the protection of reputation. The doctrinal error here is the repeated reliance on the potential harm of defamatory imputations over the Internet rather than a careful examination of the particular imputation at issue in any given case. Since many Internet communications will tend to reach only a very small audience (such as the union web page in Christian Labour Association), and since many of these are rambling, incoherent and unbelievable (such as those of Mr. Lopehandia in Barrick Gold), increased damage awards in all cases of cyber-libel overprotects individual reputation at the cost of free expression.

If oppressive damage awards against online critics are granted as a matter of course when no damage to a plaintiff’s reputation was reasonably likely to have resulted, the obvious danger that will arise is that future critics will be intimidated into silence. This, in turn, would undermine one of the most promising features of the Internet, which is its well-known capacity to democratize the “marketplace of ideas”[62] so that less powerful voices are able to meaningfully compete in the ongoing search for truth.[63] It is relevant to note that the institution of defamation proceedings by powerful litigants so as to silence impecunious online critics has become so common a phenomenon in the United States that it has spawned its own memorable moniker: the “cyber-SLAPP” (or Strategic Lawsuit Against Public Participation).[64] By allowing wealthy parties who have suffered no serious reputational harm (such as the plaintiff in Barrick Gold) to silence their online critics through the collection of inflated damage awards, the Canadian courts allow defamation actions involving the Internet to take on an unfortunate speech-chilling, cyber-SLAPP quality.

Treating publication on the Internet as an aggravating factor in the quantification of damages also serves to devalue the harm to reputation and individual dignity that arises in cases involving non-Internet media. Consider the hypothetical case of a plaintiff who, during the course of a staff meeting, is falsely alleged by a co-worker to have been asleep on the job. She loses a promotion, the respect of her co-workers, and her health deteriorates. Now consider a case where an individual posts a comment on an online forum devoted to discussing a particular publicly traded company in which he falsely asserts that the company has lost money in the previous quarter. No one believes him and the company’s stock price is unaffected. The application of the rule that publication over the Internet increases the quantum of damages shifts the focus away from harm to the plaintiff’s reputation and toward irrelevant considerations about the danger presented by the medium in which the words were conveyed. This, in turn, might result in the artificial inflation of the quantum of damages in the online scenario relative to the workplace setting in a manner that does not reflect the true gravity of the injuries suffered by the two plaintiffs. Such a result would undermine the protection of reputation and individual dignity, one of the twin values at the heart of defamation law.

III. Contextualizing the Emerging Cyber-Libel Jurisprudence

While the Internet and the many communications applications that it supports are still quite new, the mode of analysis employed by the Canadian courts in cases of cyber-libel to date, is not. Rather, the jurisprudence sketched out above can be understood as the by-product of an analytical paradigm that has seamlessly woven itself into the very fabric of defamation law over several centuries. This paradigm has emerged out of the longstanding distinction between libel and slander, and involves the use of extremely broad and unsustainable generalizations about the media through which impugned statements are transmitted in order to determine how particular defamation cases are assessed. To fully appreciate the paradigmatic link between today’s cyber-libel jurisprudence and the archaic libel-slander dichotomy, the nature, history, and justifications for this rather reviled legal distinction must be briefly canvassed.

Libel and slander represent two distinct common law regimes for the adjudication of defamation actions. The rules that constitute the tort of libel are heavily tilted in favour of aggrieved plaintiffs, which has led some to characterize it as a form of “no-fault liability”.[65] In order to establish a prima facie cause of action, a plaintiff need only show that the words complained of (1) are reasonably capable of defamatory meaning, (2) refer to the plaintiff, and (3) have been published to at least one third party. The plaintiff is under no burden to demonstrate that the impugned statement is untrue or that the defendant was at fault in publishing those words. Most significantly, having proven each of the above three elements, the plaintiff need not demonstrate that any loss was suffered at all in order to collect damages. The tort of libel can therefore be said to presume falsity, fault, and damages.[66]

By contrast, where an impugned statement is governed by the law of slander, the rules are more heavily tilted in favour of defendants. Unless the impugned words can be slotted into one of four specific exceptions that constitute “slander per se”,[67] plaintiffs in slander actions must prove that they suffered special damages in order for the claim to be actionable. Given that what is at issue is damage to reputation, an inherently nebulous concept that is by nature difficult to prove, this evidentiary obligation tends to either completely negate or greatly reduce the value of many such claims.[68] The exceptions to the obligation to prove special damages, which evolved in a rather haphazard manner over time, depend on the substance of the slanderous imputation. They are: (1) words disparaging the reputation of the plaintiff in the plaintiff’s trade or profession, (2) words imputing the commission of a criminal offence, (3) words imputing a “loathsome or contagious disease”, and (4) words imputing “unchastity” to a woman.[69] Given the relative narrowness of these exceptions, the strategic advantage to defendants flowing from the characterization of impugned words as being slanderous rather than libellous, is significant and often determinative.

For present purposes, what is most significant about these parallel regimes is that the sole determinant of whether a plaintiff’s claim is governed by the plaintiff-friendly rules of libel or the defendant-friendly rules of slander, is the medium in which the impugned words were transmitted. Initially the distinction was made between messages communicated orally, which were governed by the law of slander, and messages in writing, which fell under the law of libel.[70]

A practical problem with the application of this dichotomy, readily apparent even centuries ago, was that many defamation cases involve complaints about communications transmitted through media that are neither speech nor writing (e.g., non-verbal gestures), or contain elements of both (e.g., speeches read aloud from written scripts).[71] This practical difficulty has produced jurisprudence that is rife with inconsistency, unpredictability, and unprincipled distinctions. For example, the giving of an impromptu speech to an audience was often held by the courts to be slander, whereas the reading out of the very same defamatory words from a prepared text to an audience was regarded as being libellous, whether or not the audience knew of the script.[72] Whereas placing a lamp in front of a house so as to signify a brothel[73] or burning a person’s likeness in effigy[74] were regarded as being libellous, a store owner who publicly prevented a customer from leaving a store in order to effect a search for suspected shoplifting had merely slandered the aggrieved customer.[75]

These practical difficulties emerged out of a fundamental flaw that lies at the very heart of the libel-slander dichotomy. In short, it was never reasonable to attach so much legal significance to the medium through with a particular communication was transmitted. This approach spawned an analytical paradigm that has perpetually distracted judges away from looking at the true context in which particular words were communicated in order to discern what effect they likely had on the plaintiff’s reputation and dignity, and whether such an effect was legally justifiable under the circumstances. Instead, this approach has directed courts to classify and compare media based on necessarily vague generalizations about the theoretical danger to reputation that they posed or were assumed to pose. This analytical methodology necessarily reduced the rich and diverse media of communication into absurd and cartoonish caricatures.

Take for example the oldest medium in defamation law: the use of oral speech. It is clear that the capacity to cause harm in this way is wildly variable depending on all of the relevant circumstances. On the one hand, being targeted in a speech by a respected politician before an audience of thousands might be far more damaging to an individual's reputation than having the same words uttered by an (apparently) deranged speaker in Hyde Park. On the other hand, a carefully targeted rumour spread quietly in a workplace could destroy a career, while a drunken toast given to a large audience at a wedding might be—no matter how vicious the barbs it contains—simply laughed off as innocuous tomfoolery. In short, the extent to which any particular communication is likely to have damaged a plaintiff’s reputation will vary dramatically depending on innumerable factors that have little to do with the medium in which the words were communicated.

This obvious truth has long been recognized by common law courts and commentators. For example, in the 1812 case of Thorley, Chief Justice of the Common Pleas James Mansfield held that he could not “upon principle, make any difference between words written and words spoken, as to the right which arises on them of bringing an action.”[76] In this regard he noted:

[I]t is argued that written scandal is more generally diffused than words spoken, and is therefore actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed or a private letter: it is true that a newspaper may be very generally read, but that is all casual.[77]

Similarly, a Select Committee of the House of Lords concluded in 1843 that the distinctions between libel and slander as well as the distinction between regular slander and slander per se, “which are quite peculiar to the Law of England, do not rest on any solid Foundation.”[78] As such, the esteemed committee concluded that “wherever an Injury is done to Character by Defamation there ought to be Redress by Action.”[79]

When one of the witnesses before the Select Committee was asked whether there should be a legal distinction between words that were spoken and words that were written, the witness John Borthwick, Esq.—a seasoned Advocate at the Scottish Bar—testified:

I do not think there ought; and, in confirmation of my Opinion, I may perhaps be allowed to refer, it being Matter of moral as well as legal Principle, to the Authority of the great David Hume, who says, that in particular Circumstances even a Whisper may “fly as quickly and be as pernicious as a Pamphlet.”[80]

More than a century later, Professor Prosser disparaged the libel-slander dichotomy in part by noting the “wildfire spread of oral rumor and gossip in a small town” [81] and “the persistence of oral gossip about a citizen's misconduct thirty years after the event.”[82]

Professor Prosser was also among the many who have pointed out that the libel-slander dichotomy itself is less the product of principle than of unfortunate historical accident.[83] Before the seventeenth century, jurisdiction over defamation law in England was parceled out among a number of competing bodies including local, seigneurial, common law, ecclesiastical, and royal Star Chamber courts.[84] Each of these developed its own rules in respect of defamation claims that were reflective of its particular jurisdictional role and constraints.[85] A perpetual point of jurisdictional tension that left a lasting mark on defamation law was between the ecclesiastical and the common law courts (i.e., between the Church and the State). The ecclesiastical courts—which had for a long period of time jealously guarded their jurisdiction over defamation law using the powerful threat of excommunication as leverage—traditionally punished defamation with orders for penance.[86] This impelled the common law courts to restrict their own jurisdiction, through the law of slander, to cases where “temporal” as opposed to “spiritual” damage could be actually proven in the form of pecuniary loss. This is the historical origin of the obligation to prove special damages in cases of slander. The categories of slander per se, which were developed by the courts in a haphazard and ad hoc fashion, were instances where—due to the nature of the imputation at issue—temporal damage was presumed.[87]

Beginning with the well-known case of De Libellis Famosis in 1605,[88] the dreaded royal Star Chamber[89] regulated written imputations through the law of libel by importing Roman criminal law. Though initially available only as a criminal remedy against seditious defamation,[90] the law of libel quickly evolved so as to encompass civil actions, and was not restricted to imputations made against the state or state officials.[91] This new body of law, which—unlike the common law of slander—considered all defamatory imputations to be actionable, was heavily influenced by the invention of what was then a powerful new medium of communication: the printing press. This technological advancement, combined with the ongoing phenomenon of the blood duel as a method for vindication of reputation, was regarded by the monarchy as being particularly dangerous to the stability of the State.[92] In this regard it is important to note the manner in which the law of libel, like the emerging cyber-libel case law catalogued above, represented a stern legal response to the emergence of a feared new technology for mass communication that threatened to disrupt existing power relations in society.[93] When the common law courts finally gained exclusive jurisdiction over all of defamation law in the late seventeenth century,[94] the Frankenstein-like hodgepodge of complicated and contradictory rules that emerged out of these old jurisdictional conflicts (including the libel-slander dichotomy) became a single body of unwieldy law.[95]

Yet despite its accidental origins and the persistence of withering criticism, the libel-slander dichotomy endured throughout most of the common law world into the twentieth century. At that point, many believed that the emergence of mass media such as radio and television—which appeared to truly defy any facile categorization as libel or slander—would finally ring the death knell for the distinction.[96] But, often citing the weight of historical precedent,[97] courts and commentators generally declined to jettison the distinction and instead took up the mantle and struggled with the awkward task of slotting twentieth century mass media into one of the two archaic categories by analogy to either writing or speech.[98]

The results of this comparative exercise were often inconsistent and incoherent. For example many American jurists and commentators, especially in the first half of the twentieth century, adopted a rigidly formalistic approach, pursuant to which the key criterion in determining the applicable legal regime for a given medium was whether it involved or could somehow be tied to writing, in which case the rules of libel would apply, or to the transmission of sounds, in which case rules of slander would apply. This analysis produced the distinction between those cases where an impugned statement made during a radio or televised broadcast was made based on a script, to which—due to the supposed connection to writing—the rules of libel would apply, and broadcasts of “extemporaneous” commentary, which were governed by the rules of slander.[99]

Other American jurists and commentators contended that the controlling criterion in classifying statements made using broadcast technology as being either libel or slander, ought to be the permanence of the medium in question.[100] Under this analysis, if a communication was merely fleeting in nature it was likely less harmful and, as a result, it was argued that the rules of slander ought to apply to radio or televised broadcasts.[101] This meant that radio and television defamation—even if broadcast to millions—was far easier to defend than simple written defamation. In recognition of the obvious illogic and unfairness of this approach, many courts and commentators—especially in the latter half of the twentieth century—finally settled upon the capacity for mass dissemination, and the presumed harm to reputation flowing from such dissemination, as the controlling criterion in determining whether a statement made using a particular medium ought to be considered libel or slander. Pursuant to this analysis, all radio and television broadcasts were to be treated under the more stringent rules of libel.[102] This common law development has been codified in most of Canada’s provincial defamation statutes.[103]

Though the difficulties in slotting television and radio broadcasts into the old categories of libel and slander now appear to be more or less resolved, the emergence of Internet communications technologies clearly has the potential to reopen these old wounds and shine a light once again on the archaic libel-slander distinction. As a result of the vast and ever-expanding diversity of applications that are supported by Internet technology, such a debate could prove far more intractable than that pertaining to radio and television in the twentieth century.[104] Fortunately, in part because the libel-slander distinction has been statutorily abolished in several Canadian provinces, which now treat all defamation as libel,[105] and in part because all parties and the courts seemed to have simply assumed without discussion that Internet defamation should be governed by the rules of libel (hence the term “cyber-libel”), this debate has not yet come to pass.[106]

Though the awkward debate as to whether Internet defamation is libel or slander may have been temporarily averted, the unfortunate analytical methodology associated with this archaic common law dichotomy has, in any event, infected the emerging Canadian cyber-libel jurisprudence. As we have seen, in both the areas of the qualified privilege defence and the quantification of damages, the courts have repeatedly relied upon menacing caricatures of Internet media (e.g., “instantaneous, omnipresent, borderless and far-reaching”)[107] so as to apply a set of legal rules that are plainly tilted in favour of aggrieved plaintiffs (i.e., no qualified privilege defence and increased damage awards). In my view, the Internet demagoguery that has marked the emerging cyber-libel jurisprudence simply would not have arisen had the common law courts not been so perennially fixated on assessing particular media for their potential to harm reputation, and then dealing with particular cases differently based on that assessment.

If the twin values of free expression and protection of reputation are to be appropriately reconciled in the digital age, the common law courts in Canada must finally abandon their tendency toward media demagoguery, and begin to focus on the entire context in which particular defamatory words were conveyed. Fortunately, the law of defamation in Quebec affords an excellent demonstration of just how such an approach should proceed.

IV. A More “Civil” Approach: Defamation Law in Quebec

A brief sketch of defamation law in the Province of Quebec not only provides further support for the thesis that the hostility toward Internet publications in the emerging cyber-libel jurisprudence is an outgrowth of an analytical approach that has its roots in the historical development of libel and slander law, it also provides a fruitful template for reform of the common law. Since the law of defamation in Quebec (a civil law jurisdiction) developed largely free from the historical shackles of the common law libel-slander dichotomy, the courts and the provincial legislature have never distinguished among different defamatory imputations based upon the medium used in particular cases. This, in turn, has translated into a cyber-libel jurisprudence (though that term is not employed in Quebec) that remains largely free from the use of broad generalizations about the dangers posed by Internet defamation and the use of legal rules that tend to favour plaintiffs over defendants. The analysis under Quebec civil law, on the whole, remains highly contextual and case-specific, where both the existence of liability and the quantum of damages awarded in any given case are determined on the basis of all of the relevant circumstances.

Though Quebec civil law does not provide for a specific form of action for defamation, the general rules that apply to questions of civil liability as laid down in the Civil Codeof Québec (specifically article 1457)[108] do permit the collection of damages for an interference with reputation.[109] Pursuant to these general rules of civil liability, a plaintiff must establish on a balance of probabilities, the existence of an injury, a wrongful act or “fault”, and a causal connection between the two.[110] For a plaintiff to establish that they suffered an injury in a defamation case, the plaintiff must prove that the impugned words were defamatory. Defamatory words are those that, from the perspective of a reasonable person, would have brought discredit to the plaintiff’s reputation.[111] The determination of fault is a question of fact that must take into account all of the relevant circumstances.[112] A wrongful act may be either malicious or the result of simple negligence without any intent to harm. In either instance, a civil fault entitling the victim to reparation will arise.[113]

Unlike the situation at common law, there is no formal distinction drawn under Quebec civil law in its treatment of written and oral imputations. The absence of any such distinction, or indeed any particular attention given to the medium through which the defamatory words were communicated, is evident from the following summary of the law by Beaudoin and Deslauriers:

Any injury to reputation, be it verbal (speech, songs, mimicry) or written (letter, legal proceeding, caricature, portrait, etc.), public (newspaper or magazine articles, books, radio or television commentary) or private (letter, pamphlet, report, brief), whether merely abusive or also defamatory, or whether arising from an assertion, imputation, or insinuation, constitutes a fault which, if it gives rise to damage, must be punished by pecuniary compensation.[114]

Though the common law defences of qualified privilege and fair comment are not available under Quebec civil law per se, the criteria for these defences are circumstances that must be considered in assessing fault.[115] Thus, a defendant can argue that no wrongful act arose on the basis that they were communicating their opinion on a matter of interest to the public, or that there was a duty to communicate the impugned words to the recipients in question.[116]

The calculation of damages, like the determination of whether sufficient fault to sustain liability is present, is a highly contextual analysis that eschews any fixed formulation.[117] In addition to any material injury that can be proven (e.g., loss of income, decreased clientele, etc.) a plaintiff in a defamation action can collect damages for moral prejudice, which is roughly the equivalent of general damages at common law. In this regard, Beaudoin and Deslauriers note:

[T]he analysis of factors influencing the assessment of moral prejudice is complex. The first is the seriousness of the act. Is it merely a discourteous or impolite comment, or is it a full-fledged attack? The defamer’s intent, while of no importance in establishing the existence of a wrong, may be relevant when it comes to assessing the prejudice ... The dissemination of the defamation is also of some consequence. Widespread publicity should logically justify a more generous award than publicity within a small circle, unless the circle was carefully targeted. The condition of the parties, the consequences of the act for the victim and those close to him, the duration of the attack, and the permanence or impermanence of the effects are also to be considered. Finally, the existence of an apology or retraction ... may constitute a factor mitigating the prejudice.[118]

Thus, while the relative scope of publication is a factor in the calculation of damages, the particular medium that might have been employed is not itself a relevant consideration.

The relative lack of emphasis placed on the medium of communication under the civil law can be observed directly in Quebec’s emerging Internet defamation jurisprudence. Though there have been a number of such cases to date,[119] questions of liability and the quantification of damages have never devolved into any sustained invective about the Internet as “potentially a medium of virtually limitless international defamation”[120] as has been the case in the common law jurisprudence. Nor have any hard-and-fast rules that apply specifically to Internet communications been developed. Two brief examples are sufficient to illustrate the contextual approach to cyber-libel in Quebec.

In Bilodeau c. Savard[121] the Quebec Court (Civil Division) awarded $2,000 to the plaintiff, a consultant who treated compulsive gambling, as a result of defamatory allegations published by the defendant, who was a relative of the plaintiff. The impugned allegations were published by the defendant on the plaintiff’s own website for one day, and suggested that the plaintiff had misrepresented the effectiveness of his treatment methods to the media. The court carefully examined the context in which the impugned statement was made and concluded that while the defamatory statement was unmeasured and motivated by malice on the part of defendant—which led to the requisite fault—it had caused only minor damage to the plaintiff’s reputation, likely restricted to his own family circle.[122] The fact that the message at issue was transmitted using the Internet did not play a significant role in the decision.

By contrast, in Diop,[123] the fact that the words in question were transmitted using the Internet did play a role in the final determination of the Quebec Superior Court. The court awarded the plaintiff, a Senegalese businessman, $100,000 in moral damages and $25,000 in punitive damages over defamatory articles published on the defendant’s blog. These articles falsely alleged, inter alia, that the plaintiff had been arrested at the airport in Paris, France in possession of two suitcases containing eight million euros. In awarding $125,000 in damages, the court noted that the blog in question was extremely popular; the defendant testified that he had a loyal readership of 15,000 to 25,000 in Senegal alone.[124] However, the extent of the publication was just one factor in the overall circumstances canvassed by the court. These included the fact that the plaintiff was a well-known and well-regarded businessman, that the defendant had acted deliberately in publishing the impugned articles, and that the broadly-diffused charges against the plaintiff were serious, false, and had caused him tremendous ongoing personal embarrassment.[125] What the court did not do was to simply rely on a boilerplate assumption that all materials posted on the Internet are inherently dangerous to reputation and thus deserving of increased monetary compensation.

As a result of the contextual approach to the establishment of fault and the quantification of damages in defamation actions, a distinction can be drawn between Quebec civil law and Canadian common law in the relative emphasis placed upon the medium through which impugned messages are communicated. While the common law, beginning with the libel-slander dichotomy through to the present day cyber-libel jurisprudence, has for centuries focused on ascribing broad and often menacing generalizations to particular media, and attaching significant legal consequences as a result, there has been no such reasoning under the civil law’s more contextual methodology. With its focus on all the relevant circumstances in each case, and not on any untenable generalizations about the danger to reputation posed by particular media, the approach of the Quebec courts to defamation law appropriately reconciles the twin values of free expression and individual reputation, which apply with equal force in that jurisdiction.[126]

V. A Prescription for Reform: A Move from Caricature to Context

Quebec’s civil law approach to defamation points the way forward to a more balanced approach to cyber-libel adjudication in Canadian common law courts. In attempting to transplant the civil law defamation methodology into the common law context, the prescription is simple: courts must treat each and every cyber-libel case on its own merits without relying on any sweeping generalizations about the broad reach and dangers of Internet publications. This applies both to the availability of the qualified privilege defence and to the quantification of damages.

A. Qualified Privilege: A Case–by-Case Assessment

That an impugned publication was made using the Internet should not—on its own—have any effect on the availability of the qualified privilege defence. In determining whether the privilege associated with a particular occasion has been lost in any given case, a court should examine the impugned Internet publication with a view to determining approximately how many times it was actually accessed and by whom, as well as the extent to which the likely audience had the requisite interest in receiving it.

Courts must avoid assuming—as was done in Christian Labour Association and Angle—that because a publication was posted on the Web it necessarily reached an audience that did not have the requisite interest. If the publication at issue happens to be concerned, for example, with an obscure topic or was posted to an obscure website, courts should not shy away from concluding that in all likelihood, the number of uninterested persons—as defined by the particular occasion at issue—who accessed the page, was only reasonably incidental such that the privilege attaching to the occasion was not exceeded.[127]

Parties to cyber-libel actions should assist the courts in this regard by adducing as much evidence identifying the likely scope of the impugned publication as is practically available. Expert-opinion evidence may be of particular utility since the mechanics of the Web and other Internet applications will often be outside the ordinary knowledge of many judges. Educating the court about the nature and scope of the specific online publication at issue might also reduce the chance that the availability of the qualified privilege defence will be denied based on nothing more than broad generalizations about the dangers of Internet defamation.

B. Quantification of Damages

Just like the qualified privilege defence, the calculation of damages in cyber-libel cases should be undertaken on a case-by-case basis, taking into account all of the relevant circumstances. Courts should strive to eschew any preconceived notions as to the potential dangers posed by defamatory statements conveyed using the Internet or any other medium. Rather, the focus should be on the reality of the defamatory statement that is actually before the court. Did it actually reach a wide audience? If it did, was it the sort of statement that would have been given any credence by reasonable persons in that audience? Such an approach would implicitly recognize the wide diversity of communications and speakers on the Internet, many of which involve communications among very small groups of individuals.[128]

C. Summary

The ruined reputations of innocent parties that are defamed using Internet media should never be casually shrugged off as unavoidable road kill on the information superhighway.[129] Nor should the suppression of vibrant online speech, which promotes many of the core values underlying the constitutional protection of free expression itself,[130] be countenanced by the courts based on facile generalizations about the Internet and its well-known capacity for unleashing “virtually limitless international defamation.”[131] The way forward is for common law judges to jettison their age old propensity for becoming distracted by the medium in which impugned words were communicated, and to instead focus on examining the full context of each case so as to assess the nature and scope of the asserted attack on a plaintiff’s reputation. Such an approach, which would adopt the spirit of the civil law of defamation in Quebec, is the best way to reconcile the competing constitutional values of freedom of expression and vindication of reputation in accordance with the dictates of the Supreme Court of Canada.

Conclusion: Grant v. Torstar Corp.—A Potential Turning Point?

While it does not represent a fundamental shift in the jurisprudence analyzed above, the recent decision of the Supreme Court of Canada in Grant may signal the beginnings of an important judicial retrenchment from both the stance of hostility toward Internet communications in particular, and the more general fixation on the medium in which the impugned communication was made in defamation cases.[132]

In short, the Court in Grant reassessed the defence of qualified privilege and concluded that it offered insufficient protection for free expression and was thus inconsistent with the applicable Charter values.[133] Chief Justice McLachlin, writing for the Court, found that—especially insofar as news media outlets are concerned—the need to establish a reciprocal duty as between the defendant and the public at large, unduly limited freedom of expression in favour of protecting reputation.[134] The Court thus created a new defence of “responsible communication on matters of public interest” that will be available in respect of assertions of fact on a matter of public interest where the defendant was diligent in trying to verify the allegation—having regard to an open list of enumerated considerations.[135]

Though the defendants in Grant and its companion case of Cusson v. Quan[136] were part of a traditional media outlet, the Supreme Court of Canada considered whether the new defence would also apply to those who were not professional journalists. In concluding that the defence would be open to “anyone who publishes material of public interest in any medium,”[137] the Court noted that

the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.[138]

The Supreme Court of Canada’s approach to this new defence is commendable in a number of ways. By explicitly making the defence available to communications made in any medium, the Court borrowed a page from the civil law textbook and eschewed the improper focus on the mode of communication that has bedevilled the common law for so long. The test that the Court adopted—which assesses whether the defendant acted responsibly by looking to factors such as the seriousness of the allegation, the public importance of the matter, its urgency, the status and reliability of the source, and “any other relevant circumstances”[139]—introduces precisely the sort of medium-blind context sensitivity into the analysis that I have advocated above. Finally, the Court should be applauded for avoiding the kind of demonization of Internet communications that has marred much of the emerging cyber-libel jurisprudence to date.

However, the Court in Grant did not eliminate the qualified privilege defence, it merely opened up a new defence for defamatory statements of fact that are made on matters of public interest. Where the subject matter of an online publication cannot be slotted into the nebulous “public interest” category (i.e., a subject matter “inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached” [140]), the antiquated rules associated with the qualified privilege defence will still apply. Similarly, because the Court’s ruling did not address the issue of damages, this area of the law remains improperly calibrated, as I have argued above.

Ultimately, whether or not the Grant decision represents a fundamental shift in the common law courts’ attitude toward defamation law remains unknown, both in terms of the age old propensity to focus far too much on the medium in which the impugned publication was made, and the more recent judicial hostility toward Internet communications. Nevertheless, the ruling suggests that with the libel-slander dichotomy receding into the rear-view mirror in most Canadian jurisdictions, the courts may yet begin to nurture the “enfant terrible of the [common] law”[141] into digital age maturity.