Defamation law in Canada: A look at the data

By Yves Faguy May 7, 20187 May 2018

Defamation law in Canada: A look at the data


Hilary Young, in a recent Canadian Bar Review article, brings some data to the debate surrounding defamation law reform in Canada.  Noting that defamation is “an old tort that has changed relatively little over the centuries,” Young explains that the push behind efforts to reform it are driven by changes in how society views free speech in an era where communications technology is evolving at breakneck speed.  Also driving the push until now has been “anecdotal evidence” that the threat of litigation under defamation law is putting a chill on free speech. The study focuses on reported decisions between 1973 and 1983 and between 2003 and 2013:

The study has several interesting results. It demonstrates that the average non-pecuniary damages award has almost doubled between the two periods studied—even when adjusted for inflation. It reveals that the percentage of corporate defamation cases (versus those brought only by human beings) is significant—about a third—but that the percentage has not increased greatly over the time periods examined. The study indicates that reported defamation cases resulted in liability significantly less often in he later period (in only 28% of cases) than in the earlier period. Moreover, rates of liability were higher in cases involving new media (internet and email) publications than those involving other forms of publication. The study shows that punitive damages were awarded to corporations more often than to human plaintiffs, and in higher amounts. It also shows that punitive damages were awarded in about a quarter of all defamation cases in both periods.

Young concludes by calling on our courts in all jurisdictions to collect and organize data on defamation actions across Canada, and make that information available to the public:

Lawyers, legislators, and researchers should be able to readily obtain information about rates of liability or damages by cause of action. This would be a major undertaking on the part of the provinces, and issues of privacy would need to be worked out, but this is a discussion we should be having so as to promote evidence-based lawmaking by courts and legislatures

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