James Boswell, in his exquisite biography of Samuel Johnson recounts a conversation with his friend and subject in which he said “Sir, you'll never make out this match, of which we have talked, with a certain political lady, since you are so severe against her principles.”
To this Dr. Johnson replied “Nay, Sir, I have the better chance for that. She is like the Amazons of old; she must be courted by the sword. But I have not been severe upon her.”
Boswell, begging to differ, responded “Yes, Sir, you have made her ridiculous.”
Dr. Johnson then came back with “That was already done, Sir. To endeavour to make HER ridiculous, is like blacking the chimney.”
I often feel that a paraphrase of this particular witticism would be appropriate in the mouths of judges when dismissing frivolous defamation law suits. There are far too many people in this day and age, who the moment somebody has “been severe upon them” vocally or in print, rush to their lawyer and file a defamation suit in the hopes of having their hurt feelings assuaged by being made richer at the expense of their detractors.
Much of the blame for the problem lies in the laws themselves. The British/Canadian parliamentary monarchy system is the best form of government the world has ever known. The Common Law is the fairest, most just, set of laws any human society has ever evolved. The best elements in the American republican system are elements which the United States kept from the British tradition when the Americans seceded from the British Empire to form their Republic.
In the case of laws pertaining to defamation however, whether libel (written defamation) or slander (spoken defamation) our laws have long been in need of a major overhaul. This is one of the few instances – perhaps the only instance - in which I would say that the Americans have actually improved on our system.
I am sometimes inclined to agree with the late Dr. Murray N. Rothbard that libel and slander laws should be abolished altogether. In The Ethics of Liberty, (1) Dr. Rothbard argued that laws against libel and slander are based on the idea that a man has a property right to his reputation. This idea, he further argued, is false because a man’s reputation does not consist of ideas in his own head but rather ideas in the heads of other people. Since a man has no property right to ideas in other people’s heads, Dr. Rothbard reasoned, he has no right to legal protection of his reputation against libel and slander.
That is an intriguing argument but it has a weakness in that it relies upon the classical liberal worldview. Classical liberalism teaches that human beings are sovereign individuals who possess natural rights, that the only valid societies are societies based upon voluntary agreement between individuals, and that the only valid laws are those which protect the rights of individuals. For those who accept this worldview, the starting point for the justification of any particular law must be the right or rights of the individual which it protects.
If it is false to say that a person has a right to his reputation – to be thought well of in the minds of others – it is nevertheless true that damaging a person’s reputation can cause suffering for that person, and not just hurt feelings. Damaging a man’s reputation can hurt his career, his business, and his livelihood. If a person maliciously sets out to cause this kind of harm to another person by telling lies about him then surely the law is justified in providing the person so harmed with a means of legal redress.
Dr. Rothbard’s argument breaks down because his premise is false. Protecting the natural rights of individuals is not the sole or even the primary justification for law. Laws exist, because human beings are both social creatures – it is our nature to live together in families, communities, and societies – and individual persons, with personal interests. There is often tension between one person’s interests and another person’s interests, and between our personal interests and those of the community. We also have a flawed moral nature that disposes us towards hurting others if it is to our advantage. Our human nature therefore requires laws so that disputes can be settled peacefully and grievances redressed without an escalation into violence that threatens all of society, and so that those who in willful disregard to the laws of society harm other people can be held accountable.
There are two main categories of law. Criminal law prohibits and prescribes punishment for acts in which people intentionally and without justification harm other people by killing them, stealing their property, etc. Civil law provides a legal framework in which disputes between people who have been unable to come to a private agreement can be settled.
Where do laws against libel and slander fit in?
Defamation laws fall under civil law, under the category of personal injury. Defamation is considered to be speech which injures another person entitling that person to compensation.
Since defamation law is civil rather than criminal complainants are not held to the strict standards required of the Crown in criminal law. This is where the problem with libel and slander laws lies.
The strict requirements placed upon the Crown in criminal law are there for a reason. They are there to protect people from wrongful prosecution. To even proceed with a case the Crown attorney must demonstrate to the court that a crime has taken place and that the evidence points towards the defendant. At no point does the burden of proof shift from the Crown to the defence and in order to obtain a conviction, the Crown is required to establish guilt beyond reasonable doubt.
The criminal justice system of the English speaking world is weighted in this way, against the prosecution and in favour of the accused, because a key principle of that system as it has evolved is that it is better for a large number of guilty people to go unpunished than for a single innocent person to be punished for a crime he did not commit. This is one of the most admirable aspects of our justice system.
The reason a similar burden is not placed upon the complainant in civil law is that civil law is not supposed to be punitive. It is there to mediate disagreements not to punish people for criminal acts. If your living room window is broken because your neighbor threw a baseball through it that is basically all you have to demonstrate to the court to be entitled to compensation from your neighbor.
An injured reputation, however, is not quite like a broken window. A window cost you a specific amount of money to install in the first place and will cost you so much to repair. That is easily assessed and places a limit on how much compensation you can ask for.
It is much harder, if not impossible, to assess damages on harm to your reputation. Without that limiting factor, laws under which people can claim compensation from others become potential weapons in the hands of those who would abuse the system to harm their opponents.
Which is exactly what libel and slander laws have become.
There is another difference between libel laws and other civil laws. The man who takes his neighbor to court for a broken window has to at least prove that his window was broken. Libel complainants are held to a less strict requirement. They do not have to show that their reputation was actually damaged, only that the words of the defendant have a tendency to cause such damage.
Is this a good or a bad thing? Many people would probably say that if Person A published a statement that Person B is a sexual pervert and a serial killer, without proof and in fact knowing that he is telling a lie that that is sufficient for Person B to press a libel action against Person A regardless of whether anyone believed him or not. Most of us would probably be uncomfortable with the suggestion that people should be allowed to go around telling those kinds of lies about other people without fear of repercussions.
If, however, Person B is entitled to sue Person A over such statements without proving that they have actually damaged his standing in the sight of others, hurting his social position or his business and livelihood, then what exactly is he to be compensated for if he wins his suit? Is he actually seeking compensation for an injury or punishment for a wrong?
If one person can sue another person for libel without demonstrating that he has been denied access to certain social circles, that he has lost customers, been refused a job or promotion, been demoted or fired, or otherwise suffered a tangible, quantifiable, injury as a result of the second person’s statements then surely such laws are more punitive than compensatory and defendants in libel cases should be entitled to protection from the same safeguards against wrongful prosecution which exist in criminal trials.
It is reasonable for the system to be slanted in favour of the defence and the burden placed upon the prosecution in criminal trials. This does not mean that it is reasonable for the system to be slanted against the defence in non-criminal trials. It is never reasonable for the system to be slanted against the defence. When the system is slanted against the defence it becomes an instrument of injustice.
Those who fail to see the problem with our defamation laws frequently make the point that “words can hurt people”. So they can. Words can hurt someone’s feelings. People’s feelings, however, are not protected by the law, nor should they be. More importantly, words can cause a person to lose friends and can destroy his career. For this reason a certain degree of legal protection should exist for a person’s reputation.
It is curious, though, the way some people seem to think that a person’s reputation should have greater legal protection than his person or property. Progressive liberals, for example, whose beliefs are quite different from those of classical liberals, sometimes do not appear to place much value in the law’s protection against criminal violence to one’s person and property. They often, as I see it, allow their tendency to regard the perpetrators of violent crimes as victims of society (because of poverty, discrimination, or some such reason) to overshadow the more substantial victimhood of the people against whom violent crimes are committed. Proposals to make the system tougher on violent crimes against people and their property, are typically met with suspicion from progressive liberals who frequently denounce such ideas as a form of fascism. Yet the same progressive liberals are often the strongest supporters of our current libel and slander laws, slanted towards the complainant though they be. Indeed, they are the primary supporters of “hate speech” laws, which are an extension of the concept of legal defamation into the realm of interaction between social groups, and which are even more slanted towards the complainant than regular personal defamation laws.
Yes, words can hurt people. Laws, however, can hurt people too. Furthermore, people need far more protection from the abuse of laws than they do from people’s words. Laws exist to protect people but they made effective by government power which itself can sometimes be a bigger threat to people than the things laws protect people from. The question Juvenal placed, in his sixth Satire, in the mouth of a husband advised by his friends to keep his wife under lock and key, has become a timeless insight into the threat inherent within protective power: Quis custodiet ipsos custodies? - Who will guard the guards?
Progressive liberals clearly recognize this threat when it comes to criminal law and err on the side of making criminal law ineffective in protecting people against violent crime – which is admittedly better than erring in the other direction. They do not give the impression that they recognize that the same threat exists in civil law.
Civil law can be abused, however, to harass and persecute people. This is particularly true of defamation law.
How then should this tort be tweaked?
For starters it needs to be made clearer that only false statements can be considered defamatory. Laws should never prohibit people from speaking the truth and people should never be punished by law for speaking the truth. Most people assume that “false” is part of the essential definition of defamation, and it is generally accepted that truth or accuracy of statement is a valid defence in defamation cases. The courts, however, have not consistently seen it this way. That needs to change.
One of the most disturbing rulings in the history of Canadian law was the ruling in the CHRT v. Taylor and Western Guard case that truth was not a defence. Now that ruling pertained only to Section 13, the “hate speech” clause of the Canadian Human Rights Act, the constitutionality of which is about to be debated in the courts. The Canadian Human Rights Act is a separate category of civil legislation but the theoretical justification for Section 13 is derived at least in part from the concept of defamation. “Hate speech” is said to injure the reputation of social groups – races, nationalities, religions, sexes, groups with a particular sexual orientation, etc. – the way libel and slander injure the reputation of individual persons.
Section 13 was particularly bad law, being so slanted towards the complainant that until the ruling in Warman v. Lemire in 2009, when the defence persuaded the tribunal adjudicator that the law itself was unconstitutional, the defence never won. This is because Section 13 – like the entire Canadian Human Rights Act – was written to serve a political agenda. Ordinary personal defamation law is not quite that bad. It needs to be made unquestionably clear, however, that in defamation cases truth is not just a defence, but an absolute defence.
Secondly, malice must be defined as an essential component of defamation. In civil law one does not ordinarily have to show malicious intent in order to obtain compensation. The way it currently stands in Canadian defamation laws, no burden of proving malicious intent is placed upon the plaintiff, but if he can prove malicious intent it is allowed to negate the truth defence. This needs to be reversed. The truth defence must be made absolute, so that demonstration of intent can not negate it, and a burden of demonstrating malice placed upon the plaintiff.
Defamation law differs from other civil laws in several ways as we have seen. Since laws against libel and slander have the effect of placing limitations upon our freedom so publicly speak our mind the demonstration of malice must become an absolute requirement on the part of the complainant in order for these laws to brought into harmony with the spirit of British/Canadian law viewed as a whole.
Every society recognizes that there must be limits on personal freedom. Some societies regard freedom as something given to their members by government and which is limited to those liberties clearly defined by law. Societies within the tradition which evolved in Britain do not think this way. We regard freedom as something people possess as a gift from God, not a gift from government, and in our tradition laws define the limits on liberty, not the extent of liberty. Under the Crown, people are free to do whatever is not expressly prohibited by law, and government needs to justify the limitations it places on our liberty.
The justification for the major prohibitions of criminal law is fairly obvious. Acts like murder, robbery, rape and assault are acts which are clearly malum in se – wrong in themselves. Nevertheless, to convict a person of having committed one of these crimes, the Crown needs to demonstrate that the person knew he was committing a crime. The principle behind this is actus non facit reum nisi mens sit rea – the act does not make one guilty unless the mind is guilty. If this burden is placed upon the prosecution in cases of murder, rape and robbery, how much more then does it make sense to require a demonstration of malicious intent before we place limits on a person’s freedom to speak their mind.
What does it mean to demonstrate malice in a defamation case?
To show that the person making the defamatory remark a) knew that what he was saying was false and b) spoke with the intent that his remark would be believed by others so as to damage the complainant’s social status, career, or livelihood.
Finally, if someone files a complaint of libel or slander against someone, over some petty remark, in order to waste that person’s time and money in a lengthy court battle, then he should be held in contempt of court and charged with mischief in a criminal court.
The recent decision of Mr. Justice Peter Annis in John Baglow v. Roger Smith and Connie and Mark Fournier is a refreshing indicator that judges in this country are starting to wake up to how our defamation laws can be misused against opponents in the age of the internet. Lets hope this trend continues and that the changes suggested above are implemented to protect people from the abuse of libel and slander laws and make our defamation laws more compatible with the spirit of the British/Canadian legal tradition, rooted in justice and liberty.
(1) Murray N. Rothbard, The Ethics of Liberty, (Atlantic Highlands: Humanities Press, 1982)
Weimerica Weekly Episode 76 - Lena Dunham
12 hours ago