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Franklin Carter on Libel Chill

On February 5, 2013, the Toronto Star published an article about Alfred A. Knopf’s decision to delay the Canadian release of Lawrence Wright’s Scientology exposé Going Clear over potential libel concerns. Commenting on the news, Franklin Carter – editor and researcher for the Book and Periodical Council’s Freedom of Expression Committee – noted an ongoing “libel chill” in Canada, which he described as “the fear of getting sucked into an expensive, open-ended court battle for publishing something negative but true about a wealthy person or organization.” Having tracked the issue of libel for Non-Speak Week in October, and recognizing its potential to act as an “invisible hand of censorship,” PEN Canada reached out to Carter for a broader discussion on libel chill.

In a U.S. court, it’s hard to prove defamation. In a Canadian court, it’s hard to defend against a defamation lawsuit

Why is a libel action against Going Clear likelier in Canada than in the United States?

Franklin Carter

It’s possible to defame someone in the United States as well as in Canada, but the requirements for proving defamation in court differ in both countries.

In the United States, the burden of proof is on the plaintiff. You – the plaintiff – must prove that the defendant published a false and injurious statement about you. If you’re a public official or a well-known figure, you must also show that the defendant acted with malice when he or she published the defamatory statement.

In Canada, the burden of proof is on the defendant. You – the defendant – must prove that you did not publish false and damaging remarks about someone’s reputation. You must prove that your facts are true and that your opinion could be held by anyone. You have a few other defences as well.

In a U.S. court, it’s hard to prove defamation. In a Canadian court, it’s hard to defend against a defamation lawsuit. So, if a plaintiff has a choice of jurisdiction, he or she will probably sue in Canada.

Alfred A. Knopf has delayed the release of Going Clear over libel concerns, but HarperCollins published Jenna Miscavige Hill’s Scientology exposé, Beyond Belief: My Secret Life Inside Scientology and My Harrowing Escape. What might be some of the considerations vis-à-vis libel for the publishers in these cases?

Because these are legally sensitive non-fiction books, I think both publishers want to achieve at least three objectives. They want to

·         verify all the facts in the books;

·         avoid publishing statements that are false and damaging to the reputations of people and corporations; and

·         establish that the public has an interest in reading these books.

The publishers may publish negative, truthful statements in their books, but the publishers must have facts, evidence and testimony that will stand up in court.

I presume that HarperCollins Publishers asked lawyers to vet the manuscript of Beyond Belief for potential legal problems before the book’s release in Canada, and I suspect that Knopf U.S. is now doing the same for Going Clear. HarperCollins simply succeeded in getting its book to market first.

Cusson v. Quan (2009) and Grant v. Torstar Corp. (2009) established a public interest defence in libel cases. Is there evidence to suggest this has created more leeway in defending against defamation suits in Canada?

In December 2009, after hearing Cusson v. Quan and Grant v. Torstar Corp., the Supreme Court of Canada established the new defence of “responsible communication on matters of public interest” in defamation disputes. Today, even though it is less than four years old, the defence is having an impact on such disputes.

The “public interest” defence played an important role last year when a newspaper successfully used it (among others) to fend off an MP’s defamation action in Vellacott v. Saskatoon StarPhoenix Group Inc. In 2010, the Greens also used the defence against a former Green candidate’s defamation action in Shavluk v. Green Party of Canada.

Some observers, such as lawyer Marko Vesely, say the defence could be used in the high-profile dispute between Vancouver’s Georgia Straight, journalist Laura Robinson and former VANOC executive John Furlong. We’ll have to wait and see.

Often, the plaintiff does not expect to win the lawsuit; he or she simply wants to inflict financial damage on critics and intimidate other would-be critics into silence

Is there sufficient protection in Canada against having libel cases boil down to whether the accused can afford to fight the case?

That’s a tough question to answer for at least two reasons. First, defamation laws vary from province to province, so some provinces may offer greater legal protection than others to defendants. Second, I don’t know of many current books or pamphlets that are written for non-lawyers about Canadian defamation laws that address your question.

Last October, however, PEN Canada posted an interview between Philip Slayton and Brian Rogers, a highly regarded lawyer in Ontario. In the interview, Mr. Rogers said that the cost of defending against a defamation action is still expensive, especially when the plaintiff – an individual or a corporation – is wealthy.

It’s also worth noting that Quebec is the only province in Canada that has anti-SLAPP legislation.

A SLAPP is a “strategic lawsuit against public participation.” It is an expensive, vexatious lawsuit that is filed in court by a wealthy plaintiff to punish the plaintiff’s critics. Often, the plaintiff does not expect to win the lawsuit; he or she simply wants to inflict financial damage on critics and intimidate other would-be critics into silence.

Truth-telling defendants in defamation disputes would be better off if more Canadian provinces had anti-SLAPP legislation. Judges could dismiss vexatious lawsuits before a defendant’s legal bills pile up. But in the absence of such legislation throughout most of Canada, the answer to your question is no.

Is Canada doing enough to balance the right to fight defamation with the right to free expression? Or is it still an attractive destination for “libel tourism”?

I wouldn’t say that Canada is a favoured destination for libel tourists. But some plaintiffs who live in Ontario do sue defendants who live outside Canada.

In 2003, Cheickh Bangoura – an African-born resident of Ontario and a former official of the United Nations – sued The Washington Post in Ontario. He argued that the newspaper had defamed him in an article that was published in 1997 when he lived outside Canada. He also argued that Ontario was a suitable jurisdiction to resolve the dispute because Ontarians could gain access to the Post’s story through the Internet.

In 2005, Ontario’s Court of Appeal rejected Mr. Bangoura’s jurisdictional claim. In 2006, the Supreme Court of Canada refused to hear an appeal.

Last year, Joost Blom – a professor of law at the University of British Columbia – argued in The Lawyers Weekly that Ontario should expect to see more cross-border defamation lawsuits. His article – which is dated August 17, 2012 – appears here.

Finally, I’ll say a few words about the defamation dispute between Dale Askey and Herbert Richardson.

In September 2010, Dale Askey – a librarian at Kansas State University – posted critical remarks about the Edwin Mellen Press (EMP) on his blog. EMP, which publishes scholarly books, has an office in Lewiston, New York.

Several months later, Mr. Askey moved to Hamilton, Ontario, to take a job at McMaster University. The university began hosting his blog. In June 2012, Herbert Richardson – the founder of EMP – sued Mr. Askey for more than a million dollars in Ontario’s Superior Court of Justice.

On the same day, EMP filed a similar lawsuit against Mr. Askey and McMaster University in the same court. EMP has since dropped this lawsuit.

Mr. Richardson could have tried to sue Mr. Askey in the United States where the blog post was originally published. I presume Mr. Richardson chose to sue in Ontario because he thinks his chances of winning are better there. Because the dispute is still unresolved, we’ll just have to wait and see.

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