Re-thinking the common law of defamation : striking a new balance between freedom of expression and the protection of the individual’s reputation

Reputational interests are protected against defamatory and injurious statements by the common law o f defamation, which permits the targeted individual to recover damages for the injury to his reputation. At the same time, this body of common law sets limits to the constitutional right to free expression of the person who made the penalized communication. However, since s.32(l) of the Canadian Charter of Rights and Freedoms - according to the Supreme Court of Canada - restricts the Charter's application to the actions of legislative, executive and administrative branches of government, the Charter will be at best a bit player in defamation litigation governed by common law rule. This thesis deals with the tension between promoting free speech and protecting a person's reputation, i.e. with the questions whether the common law of defamation has achieved the correct balance between the protection of the individual's reputation and freedom of expression, or whether it needs to be modified in order to better accord with the Charter. A n important component of this thesis is its review of the decision of Hill v. Church of Scientology, where the Supreme Court of Canada addressed the question of whether defamation law needs to be reconsidered in light o f the Charter protection of free expression, and found the balance struck by the current law to be appropriate. A critical look at this decision, and more generally at the law of defamation itself, particularly its presumptions of falsity, malice and damages, will reveal the problems with the common law's resistance to making any major allowance for free expression. The author will argue that the Charter should apply to the common law in the same way as it applies to statutory law and that defamation law in particular would, in all probability, not survive the test under s.l of the Charter, concerning the justification of a limitation to a fundamental right. It will be concluded that the common law of defamation needs to be modified, i.e. that it must accord significantly more weight to freedom of expression in order to be consistent with the Charter. Insofar as the extent of such modification is concerned, the author will propose first of all to give the element of fault a more significant role in the common law of defamation. In addition, she will argue that the common law presumptions should be abolished. In sum, the author's reform proposal requires the plaintiff to prove not only that the words he complains of are defamatory, identify him and are published to a third person, but also that they are false, did indeed cause damage to his reputation and that the defendant acted with fault, i.e. intentionally or negligently, when publishing the defamatory falsehoods.

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