Tag: Defamation

News: Reframing Libel event – papers now available « Inforrm’s Blog


In November 2010 we reported on the Reframing Libel” event at City University London.  This brought together academics, practitioners, and campaigners to discuss the future of libel reform.   We subsequently published posts based on the contributions by Razi Mireskandari (one of our most popular posts), Dominic Crossley and Hugh Tomlinson (Part 1 and Part 2).

Writing on her “Meeja law” blog journalist and researcher Judith Townend (who was involved in the organisation of the event) reports that,  to coincide with the government’s publication of the Draft Defamation Bill, the Centre for Law, Justice and Journalism at City University London has made digital papers available here.

Group defamation in the Supreme Court of Canada

Section 10 of the Defamation Act, 2009 provides

Where a person publishes a defamatory statement concerning a class of persons, a member of that class shall have a cause of action under this Act against that person if –
(a) by reason of the number of persons who are members of that class, or
(b) by virtue of the circumstances in which the statement is published,
the statement could reasonably be understood to refer, in particular, to the member concerned.

A recent decision of the Supreme Court of Canada, noted here by Inforrm, can help fill in some of the gaps in that section. Some extracts:

Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9 (CanLII) (17 March 2011)

Deschamps J.

[1]                              The law of defamation is a tool for protecting personal reputations.  This right keeps pace with changes in society and in the importance attached by society to freedom of expression.  In Quebec, actions in defamation are governed by the general principles of civil liability.  The flexibility of those principles makes it possible to address society’s growing concerns about freedom of expression.  … The Court must examine the factors to consider when determining whether racist comments made about a group can cause a compensable injury. …

[16]                          The concept of defamation [in Quebec civil law] requires that the right to the protection of reputation be reconciled with the right to freedom of expression, since that which belongs to the former is generally taken away from the latter.  Several international agreements reflect this need to strike a balance between the two rights. …

[17]                          Freedom of expression is protected by the Canadian Charter of Rights and Freedoms, s. 2(b), and the Charter of human rights and freedoms, R.S.Q., c. C?12, s. 3 (“Quebec Charter”).  It is one of the pillars of modern democracy.  It allows individuals to become emancipated, creative and informed, it encourages the circulation of new ideas, it allows for criticism of government action and it favours the emergence of truth (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 (CanLII), 2011 SCC 2). Freedom of expression is essential in ensuring that social, economic and political decisions reflect the aspirations of the members of society.  It is broad in scope and protects well?prepared speech and wrath?provoking comments alike (R. v. Keegstra, 1990 CanLII 24 (S.C.C.), [1990] 3 S.C.R. 697; R. v. Butler, 1992 CanLII 124 (S.C.C.), [1992] 1 S.C.R. 452).  However, it is not absolute and can be limited by other rights in a democratic society, including the right to protection of reputation (Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (S.C.C.), [1995] 2 S.C.R. 1130, at paras. 102?106; Prud’homme, at para. 43; Néron, at para. 52).

[18]                          The right to the safeguard of reputation is guaranteed by the Quebec Charter (s. 4) and the Civil Code of Québec, R.S.Q., c. C?1991, arts. 3 and 35).  Since good reputation is related to dignity (Hill, at paras. 120?21), it is also tied to the rights protected by the Canadian Charter.  Reputation is a fundamental feature of personality that makes it possible for an individual to develop in society.  It is therefore essential to do everything possible to safeguard a person’s reputation, since a tarnished reputation can seldom regain its former lustre (Hill, at para. 108).

[19]                          Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between the protection of reputation and freedom of expression.  In reconciling these two rights, the principles on which a free and democratic society is based must be respected.  The intersection point will change as society changes.  What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today.  Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest.  In the common law, for example, this Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40 (CanLII), 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 61, [2009] 3 S.C.R. 640).

[20]                          The Canadian approach is part of a trend that can be observed in many democracies, …

[21]                          What is of interest for my purposes is not so much the specific solutions proposed by these courts, which vary depending on the legal traditions, constitutional guarantees and social norms that exist in each country, as the general trend that emerges from the cases.  Just like Canadian courts, including those in Quebec, all of these courts are increasingly concerned about protecting freedom of expression.  The law of defamation is changing accordingly.  This is the general context in which this case must be considered.  I will now look at the legal rules applicable to defamation in Quebec civil law. …

[26]                          The type of injury that defines defamation is damage to reputation.  In our law, damage to reputation is assessed objectively, from the perspective of an ordinary person (Néron, at para. 57; Prud’homme, at para. 34; Métromédia C.M.R. Montréal inc. v. Johnson, 2006 QCCA 132 (CanLII), 2006 QCCA 132, [2006] R.J.Q. 395, at para. 49).

[27]                          This level of analysis is justified by the fact that damage to reputation results in a decrease in the esteem and respect that other people have for the person about whom the comments are made. … 

[28]                          It is the importance of “others” in the concept of reputation that justifies relying on the objective standard of the ordinary person who symbolizes them.  Therefore, the fact that a person alleging defamation feels humiliated, sad or frustrated is not a sufficient basis for an action in defamation.  In such an action, injury is examined at a second level focussed not on the actual victim but on the perceptions of other people.  Injury exists where “an ordinary person . . . believe[s] that the remarks made, when viewed as a whole, brought discredit on the reputation” of the victim (Prud’homme, at para. 34).  However, care must be taken to avoid shifting the analysis of injury to a third level by asking, as the majority of the Court of Appeal seems to have done (at para. 73), whether an ordinary person, acting as a trier of fact, would have found that the victim’s reputation was discredited in the eyes of a public that was likely to believe Mr. Arthur’s comments.  The judge must instead focus on the ordinary person, who is the embodiment of “others”.

[35]                          The common law also uses an objective standard, that of the right?thinking person, to ascertain the meaning of impugned comments and assess whether they are defamatory.  This standard is taken from English common law and is based on the famous case of Sim v. Stretch, [1936] 2 All E.R. 1237 (H.L.), in which Lord Atkin stated the following, with which his colleagues concurred:

The conventional phrase exposing the plaintiff to hatred, ridicule or contempt is probably too narrow [. . .].  I do not intend to ask your Lordships to lay down a formal definition, but [. . .] after collating the opinions of many authorities I propose in the present case the test:  would the words tend to lower the plaintiff in estimation of right?thinking members of society generally?  [p. 1240] …

[38]                          While these common law principles cannot be directly transposed into Quebec civil law because of the major differences between the two systems (Prud’homme, at paras. 54?59), they often serve as a source of inspiration.  The two legal communities have the same broad social values.  Indeed, there is a striking similarity between the civil law and the common law approaches. …

[48]                          It must be inferred from this that an individual will not be entitled to compensation solely because he or she is a member of a group about which offensive comments have been made.  The member or members of the group who bring an action must have sustained personal injury.  In other words, defamation must go behind the screen of generality of the group and affect its members personally.

[49]                          That being said, the victim does not have to be expressly named or designated to be able to bring an action in defamation.  The attack does not have to be specific or particularized.  The person who made the impugned comments cannot avoid liability by hiding behind the fact that he or she used general terms applying to a group.  Attacks on a group may in fact personally affect some or all of the group’s members.  While the injury must be personal, it does not have to be unique, that is, different from the injury sustained by the other members of the group.  The reputation of more than one person may be tarnished by the same wrongful comments.  While the law does not punish the defamation of groups having no juridical personality, it does punish multiple individual defamation (D. Buron, “Liberté d’expression et diffamation de collectivités:  quand le droit à l’égalité s’exprime” (1988), 29 C. de D. 491, at pp. 497?98).  Even if the members of a group are covered by comments that mention the group, it will be necessary, in order to establish their right to compensation, that the members prove that they personally suffered damage to their reputations. …

[57]                          In any action in defamation, injury is proved if the plaintiff satisfies the judge that the impugned comments are defamatory, that is, that an ordinary person would believe that they tarnished the plaintiff’s reputation.  The same test is used where the comments apply a priori to a group of individuals, but special attention will then have to be paid to the personal nature of the injury.  The plaintiff or plaintiffs must prove that an ordinary person would have believed that each of them personally sustained damage to his or her reputation. [He idenfied the following factors:]

  1. Size of the Group
  2. Nature of the Group
  3. Plaintiff’s Relationship with the Group
  4. Real Target of the Defamation
  5. Seriousness or Extravagance of the Allegations
  6. Plausibility of the Comments and Tendency to be Accepted
  7. Extrinsic Factors

[79]                         Ultimately, the court must not conduct a compartmentalized analysis or seek to find all the relevant criteria.  What must be determined is whether an ordinary person would believe that the remarks, when viewed as a whole, brought discredit on the reputation of the victim.  The general context remains the best approach for identifying personal attacks camouflaged behind the generality of an attack on a group. …

[92]                          In short, having regard to all of the circumstances, I find that the group is of considerable size and is heterogeneous, that the characteristics attributed to the members of the group are individual and do not lend themselves well to extrapolation, and that the remarks are an extreme, irrational and sensationalist generalization.  Accordingly, an ordinary person, while sensitive to such excessive remarks, would not in my view have formed a less favourable opinion of each Arab or Haitian taxi driver, considered individually.  I therefore conclude that Mr. Arthur’s comments, while wrongful, did not damage the reputation of each Montréal taxi driver whose mother tongue is Arabic or Creole.  The plaintiff did not prove that a personal injury was sustained by the members of the group. …

[94]                          I have no doubt that racist speech can have a pernicious effect on the opinions of members of its audience.  However, it should be noted that an action in defamation will not always be the appropriate recourse in cases concerning racism or discrimination.  In the instant case, I am of the opinion that it is not the appropriate recourse.  I would therefore dismiss the appeal. ,,,

More media coverage of Lowry v Smyth

Michael Lowry

Further to my links to coverage by RTÉ and the Irish Times, here is some more media coverage of Lowry v Smyth:

Judge refuses Lowry request in defamation case, via irishexaminer.com

Michael Lowry loses bid for summary judgment against Sam Smyth, via thejournal.ie

Tax-evading Irish lawmaker Lowry loses libel case, AP via google.com

Tax-evading Irish lawmaker Lowry loses libel case, AP via forbes.com

Judge refuses Lowry request in defamation case, via breakingnews.ie

Lowry fails to secure summary ruling in Smyth defamation case, via irishtimes.com

Lowry refused defamation judgment, via independent.ie

Michael Lowry Refused Request In Defamation Case, via thurles.info

Lowry fails in ruling on Smyth claim – The Irish Times

Lowry fails in ruling on Smyth claim

Independent TD Michael Lowry arriving at the Moriarty Tribunal in Dublin Castle in April 2009. Photograph: Matt Kavanagh/The Irish Times Independent TD Michael Lowry arriving at the Moriarty Tribunal in Dublin Castle in April 2009. Photograph: Matt Kavanagh/The Irish Times


COLM KEENA Public Affairs Correspondent

Independent deputy for North Tipperary Michael Lowry has failed to get a summary ruling in a defamation case where he claimed journalist Sam Smyth had accused him of being a thief.

Judge Margaret Heneghan delivered judgment today in a case under the 2009 Defamation Act where Mr Lowry was seeking a summary ruling that comments by Smyth were defamatory, that Smyth had no reasonable defence to the comments, and that an order for a correction should be made.

In a hearing in December Smyth had argued that he had not called Mr Lowry a thief, but that he did believe the politician was a liar and a tax cheat.

Judge Heneghan said she had read through the exhibits attached to Smyth’s affidavit, which included matters to do with the McCracken and Moriarty tribunals, Mr Lowry’s dealings with Dunnes Stores, his personal statement to the Dáil in 1996, and the two publications that Mr Lowry is alleging were defamatory.

She said the question was whether it was “too far fetched” to believe Smyth had a defence. She had found it was not so. She did not find the material incompatible with the defences put forward. The matter would have to be resolved in a full hearing, she said.

Smyth had argued that he could defend himself on the grounds of truth, honest opinion and fair and reasonable comment.

During an appearance last year on the TV3 programme Tonight with Vincent Browne  Smyth had said: “The first that we caught sort, on video with hand in till was Michael Lowry.”

He later said he was referring to Mr Lowry being engaged in tax fraud.

In an article in the Irish Independent  around the same time he referred to the Moriarty tribunal investigating property transactions with a total value of £5 million sterling, in the context of its inquiries into the 1995 mobile phone licence competition.

Mr Lowry said the comment on TV3 was understood to mean that he was a thief, a corrupt politician, was unfit to be a TD and was dishonest and untrustworthy. Thief apart, he made identical claims about the Irish Independent  article.

He was not in court. When Smyth’s counsel Eoin McCullough SC asked for costs, Mr Lowry’s counsel, Michael Giblin SC, said he would like to discuss the ruling with is client. Judge Heneghan adjourned the matter of costs to a date to be decided.

The 2009 Defamation Act introduced a mechanism whereby defamation cases could be tried summarily in situations where the court found there was no arguable defence.



Lowry defamation case proceeds to full hearing – RTÉ News

Lowry defamation case proceeds to full hearing

Updated: 13:31, Monday, 31 January 2011

1 of 1 Michael Lowry - Says article inferred that he was a corrupt politician

Michael Lowry – Says article inferred that he was a corrupt politician

A Circuit Court judge has rejected an application by Independent TD Michael Lowry for a summary judgment for defamation against journalist Sam Smyth.

Circuit Court Judge Margaret Heneghan today accepted Mr Smyth’s contention that he has an arguable defence to the allegation by Mr Lowry and that the case could proceed to a full hearing.

Mr Lowry had sought a summary ruling in the Circuit Court under the 2009 Defamation Act.

However, Judge Heneghan said Mr Lowry had not established that Mr Smyth had no defence.

The case centres on comments made by Mr Smyth concerning the McCracken and Moriarty tribunals and their inquiries into matters relating to Mr Lowry’s finances.

Mr Lowry alleges that Mr Smyth made false and defamatory remarks about him in an article in the Irish Independent last May and a month later on the Tonight with Vincent Browne programme on TV3.

Mr Lowry claims that the Irish Independent article inferred that he was a corrupt politician and that it was a false and malicious article.

He claims that on the TV3 programme, Mr Smyth made a comment that implied he was a thief.

Mr Smyth is standing over his comments, arguing that they were true and based on his honest opinion.

via rte.ie


Discussion of O’Rawe v William Trimble, by Olivia O’Kane on Inforrm’s Blog


Bridget O’Rawe v William Trimble Limited [2010] NIQB 135 … is one of the few libel cases to go to trial in recent times in Northern Ireland and the judgement is not only extremely detailed but provides long awaited clarification from the bench in relation to qualified privilege and particularisation of pleadings.

In the Dock, in Paris « EJIL: Talk! « Libel Tourism and Academic Freedom

If I lose, I will stand convicted of a crime, branded a criminal. The complainant will not enjoy a windfall as in London, but considerable moral satisfaction. The chilling effect on book reviewing well beyond France will be considerable.

In preparing a defense we faced a delicate challenge. The case was otiose for two reasons: It was in our view an egregious instance of ‘forum shopping,’ legalese for libel tourism. We wanted it thrown out. But if successful, the Court would never get to the merits –  and it was important to challenge this hugely dangerous attack on academic freedom and liberty of expression. Reversing custom, we specifically asked the Court not to examine our jurisdictional challenge as a preliminary matter but to join it to the case on the merits so that it would have the possibility to pronounce on both issues.

Prof. Joseph Weiler discusses his experiences of being on trial for criminal defamation in France.