Libel Debate

As neighboring nations with analogous social cultures and customs, the United States and Canada have a disparity centered on the legality of personal libel. Both the Canadian Charter of Rights and Freedoms and the American Bill of Rights emphasize the importance of the freedom of speech; but both of their regulating agencies have ruled in different manners when problems arise with the overarching exceptions to the law. The majority of these exceptions to the “Freedom of Speech” come forth when another ‘right’ is violated. Similar to Article 12 of the Universal Declaration of Human Rights, both countries have setup laws protecting citizens against others damaging their reputation and honor, telling untruths to others. It is the role of the regulating agent, the court, to play a balancing act with the damage to reputation on one side, with the ability for an individual to say whatever they would like on the other.

The United States has been the most successful at balancing free speech and reputation, in part to the precedent set in 1964 in New York Times v. Sullivan. In this case, newspapers were finally freed to tell stories without the fear of backlash in court after what a reader may call defamatory. Media is most important vessel to get the truth out to the public and to hold others accountable. For media to be in any fear of retaliation based in speech, it will be paralyzing accountability the media places on politicians, corporations, and society. In this case, the courts introduced the element of ‘actual malice’ as the stipulation that will limit speech. ‘Actual malice’ means in court that the victim of the alleged defamation must prove that the accused knew that the statement in question was false and disregarded the truth.

This ‘actual malice’ principle is the best balance of free speech and reputation because it only penalizes individuals that are out to hurt others. It also does not limit media or individuals from taking risks in what they publish. If a media outlet or individual blogger feels like there is enough information to go on, they can take that risk and publish it. Even if they are wrong, there are no legal consequences because they had no harm in mind. In 1974, the ‘actual malice’ was addressed in the case of Gertz v. Welch in relation to private citizens and public officials or organizations.

Just as it should be, the courts decided that private citizens should be protected more against defamation than public figures. If a private citizen is going to have a libelous claim brought against them, the speech better be fully rooted in truth and accuracy. In this case, malicious words were brought against an ordinary citizen by a media outlet, all of which were not researched properly. Although the rights of the speaker are limited with this clause, the United States has this clause in effect because it will stop innocent people from being defamed out of spiteful and unjustified reasons.

In Canada, the courts have established a different test called “reasonable communication,” which changes the burden of proof in the case. Instead of the alleged victim of the case proving injustice, it is up the accused to prove that their speech was responsibly justified. In the case of Grant v. Thorstar, the verdict was dependant of whether or not this issue was of public interest and whether or not the accused had done enough investigation to figure out the truth. The dependence should not be considered because public interest is always changing and what is in someone’s interest may not be in another’s. The justification in looking for enough evidence is also a poor clause in the Canadian system. Though it may seem justified by telling the truth only, sometimes there is not enough information available and reporters must go out on a limb. With fear of doing this, reporters may start to damper their pieces.

In another similar case of Quan v. Cusson, the fantasia of “responsible communication” is once again addressed when a news source must defend a piece. Though there was truth to it, some of the details were wrong. Even with research, sometimes aspects to speech will be wrong and unless there were malicious intentions are behind it, an apology or retraction will always follow. Lawsuits are expensive and if a government wants discussion and debate to flourish, they must follow suit with the United States method of balancing free speech and reputation with “actual malice.”