Defamation, Responsible Communication and Cyberspace

[excerpt form paper by Partner Ian Stauffer]

Before embarking on a review of some important substantive and procedural issues, remember that there are two conflicting values at stake in all defamation cases. There is the desire to protect an individual’s reputation pitted against the perceived need to encourage free speech.

It’s said that a person’s reputation is priceless.

But butting up against this ancient maxim is another value which goes back to at least the American Revolution: Freedom of Speech. As you probably know, our Charter of Rights and Freedoms sets out, as a fundamental freedom, the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.  It is my belief that the pendulum has swung from protecting reputation to enhancing freedom of expression.

As one Supreme Court of Canada Judge has put it: “an individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest”.

In a lawsuit based on defamation, a judge or jury is asked to set limits on what someone can write or say about another person.

In this short paper I will consider some of the difficult questions a lawyer must address when a plaintiff or defendant is involved in a defamation action.  Remember, defamation has been recognized as the basis for a lawsuit since at least the 17^th century and there are volumes of cases and legal commentaries which have been generated.  This paper can only skim the surface of a very complex and technical subject.

For the full paper please go to http://www.tslawyers.ca/_files/Defamation%20IStauffer%20Paper%202012.pdf

 This reference is provided  as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter  referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship.