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libel

This is a featured issue.

Libel laws in Canada are derived from English common law?, and are of similar vintage to other antique laws on blasphemy?, heresy? and treason?. In the Criminal Code of Canada? the categories of criminal libel are divided into blasphemous libel?, sedition? and defamatory libel.

defamatory libel


The latter is by far the most commonly applied law. According to Tremeear's Criminal Code, 2001?, page 298, it is defined as "matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published." The defence of truth? and defense of justification? apply but not absolutely - unlike other English-speaking jurisprudence?. Libels can be true! Publishing false ones is a more serious offence, as is extortion by libel? or selling a book containing defamatory libel?. In Canada the laws have attracted several Charter section 2b challenge?s on the grounds of vagueness and are often claimed to violate Charter section 7?.

civil libel


Much more common is civil libel suits for defamation? in written form - when spoken the same comments are called slander?. Its advocates claim that libel law reduces efforts to alter personal reputation? and corporate reputation? using false statements of facts and of opinion that are not justified by facts, and to compensate those who suffer provable damages from same. This is disputed by many advocates of deep reforms to these laws. Of particular concern is the reverse onus? provisions http://www.itbusiness.ca/it/client/en/Home/News.asp?id=297&bSearch=True(external link). Author Dave Webb? notes that "it's much easier to win a libel judgment against a detractor in Canada than in most of the civilized world. (In Canada, libel is a reverse-onus crime — prosecutors don't have to prove guilt. The accused must prove innocence. The only other such crime in Canada is treason?.)" He also notes that "the negative publicity of the lawsuit often outweighs the benefit."

[+] "cybersmears"

"outdated and repressive"?


technologically obsolete


David Fewer?, staff counsel with the Canadian Internet Policy and Public Interest Clinic?, based in Ottawa, believes that libel law in Canada hasn’t kept pace with technological change, and reflect newspaper-style publishing?, "where there is a delay between when content is written and when it is available for public consumption." http://www.itbusiness.ca/it/client/en/home/News.asp?id=40467 quote/characterization from Neil Sutton(external link), who also reports Fewer's view that "these publishers have the resources and wherewithal to prevent their publications from becoming outlets for defamation – not so in the online world, where information is often published instantaneously and without the benefit of mediation," another distinction US laws makes. He does not challenge the validity of libel law as such: “We don’t want the Internet to be the Wild West. There’s got to be a role for responsible intermediary behaviour here, but the answer isn’t blanket liability, the way defamatory law is currently structured.”

right of reply obsoletes it?

Electronic Frontier Foundation? co-founder Mike Godwin? has stated that the right of reply? must replace all forms of libel law in the long term. See this position in detail below.

morally obsolete


The libel definition itself is also at issue. According to media lawyer Dan Burnett?, "Canada's libel laws are currently the most outdated and repressive in the English speaking world", essentially reflecting unevolved "English common law of libel" which is "of ancient origin, dating back to an era when the treason? laws forced great literary figures to write under pseudonyms or in allegory? to avoid persecution?." He argues that this is still the case today(external link). See libel chill for more on this phenomena.

socially and politically obsolete: Martin vs. Harper


This issue became prominent in Canada when then-Prime Minister of Canada Paul Martin threatened to sue the-Leader of the Opposition? Stephen Harper over the latter's characterization of the Liberal Party of Canada as a form of "organized crime?". No suit followed, but the Canadian federal election, 2006 did, in which Harper displaced Martin as PM. during that campaign, Harper continued to deliberately insult and insinuate that the Liberals were dishonest and abused power? - including political ads and at least one public event involving a box of ostensibly public money. Harper publicly cautioned attendees "don't let any Liberals near that." Evidently the social atmosphere in Canada was such that despite Harper's clearly libellous allegations, it was not possible to pursue any such suit; This right however has not accrued in law to other critics of powerful persons or others exercising freedom of political speech.


Table of contents



issue: the reverse onus and blanket liability and other assumptions of libel law


The many controversial assumptions made in libel law in Canada, particularly those that no longer apply in the US, UK, AU or NZ, fail to protect many persons who act reasonably and responsibly, particularly in online forums. They also are open to various abuses when applied to political speech, critique of powerful persons, and so on.

[+] position: users of online forums should indemnify? against libel lawsuits

[+] position: reverse onus is unfair and prejudiced against defendants

[+] position: libel law generates perjury

[+] position: all libel law is obsoleted by right of reply

[+] position: libel must be allowed at least in online political debate forums

[+] position: Canadian libel law is utterly unconstitutional

[+] position: all persons in the world have a right to utterly ignore complaints based on Canadian libel law that would be dismissed or punished in US or Commonwealth countries, regardless

[+] position: all persons in the world have a right to utterly ignore complaints based on Canadian libel law that regard public interest or politics and do not describe business activities or personal actions undertaken for oneself

[+] position: libel law should apply to published materials on paper with a publisher who profits in a country; slander? should be the only applicable law for any utterance in electronic form, e.g. on the Internet

current cases


Two current cases illustrate some of the difficult issues in Canadian libel law.

[+] p2pnet case
[+] Crookes versus openpolitics.ca