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Sticks and stones | Bruce McDougall

Monday, May 11, 2020 @ 2:35 PM | By Bruce McDougall


Bruce McDougall %>
Bruce McDougall
If you’ve ever suspected that the law might favour one particular group of people over another, you have only to look at defamation law to confirm your suspicions. The law aims to balance freedom of speech with the damage to a person’s reputation that might arise from freely spoken but inaccurate or malicious communications. But it seems that the law protects only people who have enough fame to suffer if someone exposes it to damage, and in law, we measure fame with money.

Even in light of suggested revisions from the Law Commission of Ontario (LCO), you’ll discover that you can defend yourself successfully against defamation only if you have money. If you don’t — if you’re a young adolescent girl, for example, for whom nothing means more than your reputation among your peers and whose reputation can be destroyed in an instant — you should look for some other way to fight back.

Even if the defamation hasn’t harmed you financially, you may have to prove to the court that you can afford to pay the defendant’s costs if your action fails. That certainly disqualifies me and most of the people I know from pursuing a legal remedy for defamation.

Not only does a defamation case require money, it also requires time. Altaf Nazerali, chairman, president and CEO of Intacta Technologies Inc., for example, needed seven years to clear his name after a U.S. publisher “engaged in a calculated and ruthless campaign to inflict as much damage on Mr. Nazerali’s reputation as they could achieve,” according to a B.C. Supreme Court.

In another B.C. case, former provincial Green leader Andrew Weaver has pursued a case for nine years against a retired geography professor who accused him of engaging in “corrupted” climate science, and was only this year granted an appeal against a lower court decision that said the defendant’s words were not defamatory.

To be fair, the LCO’s recent report, “Defamation Law in the Internet Age,” recommends an alternative method for removing defamatory postings on the Internet. A person could submit “a prescribed notice of complaint” to an intermediary platform hosting the publication. The complaint would include “a description of the allegedly defamatory expression, the internet identifier (where applicable), the facts on which the claim is based, the resolution requested by the complainant, the complainant’s contact information, and a statement of good faith. The prescribed form should be written in plain language and should guide complainants in framing their complaint.”

As LCO executive director Nye Thomas told The Lawyer’s Daily, this “would impose new legal responsibilities on platforms to take down defamatory content in limited circumstances” (see “New defamation law needed to regulate harmful Internet speech,’ LCO reports”).

The LCO report also recommends that the Ontario government “should explore the potential for an online dispute resolution (ODR) mechanism to improve access to justice in online defamation disputes,” taking into account “the possibility that, in the future, social media councils or other regulatory models may play a similar role to ODR in informally resolving online defamation disputes.”

Despite these recommendations, and despite the recommendation that libel and slander be included under a single definition of the tort of defamation, much about the law would remain unchanged.

As I read it, Ontario’s Libel and Slander Act enables a litigious billionaire with pretensions of intellectual distinction, for example, to sue a newspaper for defamation if it publishes a book review of his latest nine-hundred-pound door-stopper that includes an offensive reference to his light-fingered financial shenanigans. Despite reassurances to the contrary, this possibility has persuaded newspapers and other publications to censor their writers to eliminate the possibility of a lawsuit, even if the writer can prove that the censored statement about the plutocrat is true.

But if someone circulates doctored photographs on TikTok of your impecunious adolescent daughter at a sordid frat party, her options for obtaining relief are limited. In fact, she may not obtain a satisfactory remedy under the law at all. For an adolescent, for whom life depends on reputation, better that she changes her name and moves to another city, because current law does not accommodate a victim of defamation when she can’t afford to fight the case and the damages aren’t measured in money.

These examples may be extreme, but the possible consequences of defamatory communications extend to far more mundane contexts, from background checks for job applicants and reviews on travel websites of hotels and restaurants to a concerned mother checking on her child’s friends. Defamation may even be an unintended consequence of another law altogether.

In the U.S., a long article in the New York Times Magazine titled “The Accusations Were Lies. But Could We Prove It?” described the arduous and unproductive efforts of a university professor to challenge false accusations against her, conveyed by anonymous e-mail messages, of sexual harassment. The accusations prompted a potential employer to withdraw its offer of a tenure-track position, under an innocuous provision in the U.S. Civil Rights Act called Title IX, and required an investment of thousands of dollars in legal fees to address.

“The only way to prove [her accuser’s] story false would be to go to court,” said the writer, Sarah Viren. “We had paid more than $10,000 in legal fees at that point. Our lawyer told us that taking the case to court could cost tens of thousands more. We thought about it. We argued about it. But in the end, we decided we weren’t willing to pay for more truth.”

In its recent report, the LCO says, “Access to justice is a key driver of reform here. These cases are ill-suited to the civil justice system with its attendant expense and delay. Practical alternatives are needed that address the problem of anonymous publishers and allow for the resolution of defamation claims ‘in real time’, before extensive reputational harm” is able to take hold.

Despite these admirable sentiments, I still wonder why a bloated, money-mad egomaniac can obtain a remedy for defamation when a naïve and vulnerable teenaged girl cannot. Whose life suffers the greater impact, and who in the long run pays the higher price?

As Supreme Court Justice Rosalie Silberman Abella said in a recent newspaper article, “We can’t talk seriously about access to justice without getting serious about how inaccessible the result, not the system, is for most people. Process is the map, lawyers are the drivers, law is the highway and justice is the destination. We’re supposed to be experienced about the best, safest and fastest way to get there. If, much of the time, the public can’t get there because the maps are too complicated, then, as Gertrude Stein said, ‘There’s no there there.’ And if there’s no ‘there there,’ what’s the point of having a whole system to get to where almost no one can afford to go?”

Bruce McDougall (Brucermedia.com) has written for The Globe and Mail, Maclean’s and other Canadian news magazines. He is the author of The Last Hockey Game and Every Minute Is a Suicide. A graduate of Harvard College, he attended the University of Toronto Law School.

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