Thursday, March 18, 2010

On Libel Law, Part Four, Approaches of Other Countries

In Australia, the court adopted an analysis and standard very close to that of the U.S. court in the Sullivan case. In Theophanus v. The Herald, the court concluded that the law"requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained." The court had earlier explained reasonableness as "Whether a publisher has acted reasonably must be a question of fact in every case. It will depend upon the standards and expectations of the community as to whether the allegations needed to be investigated."

The facts of the case were very good for the newspaper defendant. It had published a letter to the editor stating: "If reports coming out of Canberra are true about the alleged behaviour of Dr. Andrew Theophanous, then it is high time he was thrown off Parliament's immigration committee. I have read reports that he stands for most things Australians are against. He appears to want a bias shown towards Greeks as migrants...."

Just as with the ad in the Sullivan case, it doesn't seem that a newspaper would have much of a duty to fact-check things mentioned in a letter to the editor. Further, it appears that the statements complained of were expressions of opinion only. Anyway, the Australian court correctly saw the need to protect political expression from libel suits. The court favorably mentioned the Sullivan case from the U.S.

The English case of Derbyshire County Council v. Times Newspapers involved allegations of bribery and corruption against a town council. The court concluded that "under the common law of England a local authority does not have the right to maintain an action of damages for defamation." Much of the opinion discussed the right of a corporation to sue for libel. In general a corporation does have such a right in England, but a governmental body is different because of the public interest involved. This opinion does not discuss the Sullivan case, but adopts similar reasoning.

Finally we have from Canada the case of Hill v. Church of Scientology of Toronto. the church's attorney held a press conference on the Courthouse steps making allegations against Hill, a crown attorney, allegations which the church's attorney intended to file in a contempt proceeding the next day. At the contempt hearing, the allegations were found to be false and with no merit whatsoever, and Hill then filed a libel action.

The Canadian Supreme Court first found that this was a dispute between "private litigants", and therefore no "actual malice" standard need apply. It was an attack upon a lawyer in the employ of the crown, true, but the attack was on the person's personal character, thereby removing any protection the statements might otherwise have enjoyed.

The court next discussed the "qualified privilege" issue. Discussion of pleadings filed with the court enjoys such a privilege, and the court rejected the idea that just because the pleadings had not yet been filed there was no privilege, as the attorney had every intention of filing them when the court opened up the next day.

However, in looking at the defendant's conduct, the court found it went far beyond any legitimate purpose and therefore defeated the privilege. The court concluded: "While it is not necessary to characterize M's conduct as amounting to actual malice, it was certainly high‑handed and careless and exceeded any legitimate purpose the press conference may have served. His conduct therefore defeated the qualified privilege that attached to the occasion."

Finally the court looked at whether the damages were excessive. It concluded the damages were justified, saying "The circumstances presented in this exceptional case demonstrate that there was such insidious, pernicious and persistent malice that the award for punitive damages cannot be said to be excessive." Interestingly the court looked at all aspects of the case to ascertain the defendants' state of mind, including "a prolonged and hostile cross‑examination of the plaintiff" during the trial.

The Canada case is troubling unless one can properly distinguish it from the others. It was treated as essentially a squabble between two private citizens, removing it from the category of the other cases which involved government conduct. Further, the actual malice of the defendants (both church and attorney for the church were sued), stuck out like a sore thumb all the way through. No apology, no retraction, not anything to indicate any remorse for the damage done to this man's reputation.

This really calls into question the analysis of the U.S. court in Sullivan. It seems that the real distinction should be between governmental and private conduct, not between whether one is a public figure or not. Thus we have the successful suits of Carol Burnett and Tom Cruise, where the allegations complained of involved their private conduct, not anything havig to do with what makes them public figures.

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