When lawyers talk about libel, we’re referring to the civil tort of defamation.
We talk about the new defence of responsible communication, the expanded defence of fair comment, and damage awards. We rarely talk about criminal liability. So it’s time to start a dialogue about the appropriateness of the criminalization of defamation.
We need to start talking about the Criminal Code offence of defamatory libel. You may not be aware of this odd criminal offence, but it’s right there in s. 300 of the Criminal Code.
The section makes it an indictable offence to publish a defamatory libel — yes, the Criminal Code uses that redundant language — that someone knows to be false. It’s not necessary to establish proof of actual harm to reputation. Conviction can lead to a prison term not exceeding five years in addition to a fine.
The offence originated in England at the time of the Court of Star Chamber with the intention of preventing duelling and, of course, penalizing criticism of state actors. However, it can now only be justified on the basis that it denounces attacks on reputation.
The offence has survived a constitutional challenge at the Supreme Court of Canada (R. v. Lucas in 1998), although the court did do away with its most egregious aspect.
Section 301 of the Criminal Code also makes it an indictable offence to publish a defamatory libel regardless of whether the publisher knows of the falsity of the statement.
Courts in several provinces, including Ontario, have found this section to violate the Charter of Rights and Freedoms. The Supreme Court, however, hasn’t yet considered its validity.
Prosecution is no mere theoretical possibility.
Late last year, the court convicted an Ottawa restaurant owner, Marisol Simoes, and sentenced her to a term of 90 days under s. 300 for publishing false material concerning an online restaurant reviewer.
There are reports of a G20 summit activist facing allegations of defamatory libel of two police officers; a Bayfield, Ont., man charged in relation to allegations against a judge, a police officer, lawyers, and local family and child services staff; and an Oshawa, Ont., man in trouble for publishing nude photos of his former girlfriend.
Canada isn’t the only country to criminalize libel. While Britain abolished its criminal libel laws in 2010, most democratic countries retain them.
Indeed, the bestseller The Girl With the Dragon Tattoo starts off with Swedish journalist Mikael Blomkvist’s conviction for libel for which he receives a three-month sentence and a fine.
The proliferation of such laws notwithstanding, prosecution of citizens for defamatory libel smacks of show trials we’d expect from countries such as Russia and China.
Why should libel be subject to criminal sanction, including the potential for search warrants and the seizure of computers and cellphones?
The rationale used by the top court in Lucas, which focused on the “protection of reputation [as] a pressing and substantial objective in our society,” justifies a civil cause of action but doesn’t explain the need for criminal sanction.
Why aren’t civil remedies, including the ability to seek an injunction and obtain a substantial damage award, sufficient? How can a democratic society justify the prosecution and incarceration of those who have made offensive statements concerning state officials, particularly on matters of public interest?
It’s true that some of the defamatory libel prosecutions related to highly offensive publications concerning private individuals. But in such cases, there were other charges authorities could have laid against the offenders.
While the increasingly malicious attacks conveyed through online sources may appear to give to rise to a remedy, there’s little justification for the criminal offence of defamatory libel.
The Charter came into force in 1982. The Law Reform Commission of Canada advocated the abolition of the criminal offence of defamatory libel in a 1984 working paper.
The commission concluded the crime of defamation wasn’t an effective deterrent; didn’t make a substantial contribution to dealing with the problem of defamatory publications; and served no purpose over and above the purposes fulfilled by the tort of defamation.
Yet here we are in 2013 with the main substance of the law not having changed since its adoption from England in 1874. It’s time we removed this offence from the Criminal Code.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is firstname.lastname@example.org.