A Right to Defame?

In terms of libel defense, may countries adopt different laws that they feel is appropriate for their citizens. For example, Canada determines libel in terms of public interest while the United States chooses the approach of “actual malice” on the speaker’s part—in other words, knowing that the slanderous statement used was untrue.

In the United States, many believe that there may be too much protection for the speakers. According to the Universal Declaration of Human Rights, Article 19 states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. If this right holds true, each and every individual should be able to express his or her own point of view, regardless of the medium used. However, do anonymity rights fall into this category? In the recent case involving model, Liskula Cohen vs. an online blogger, Google was forced to reveal the email of an anonymous blogger who had written “defamatory” statements against Cohen. These remarks included calling her a “skank” and “whorish” and implying that she was very promiscuous in a blog titled “Skanks in NYC”. According to Article 19, this anonymous blogger should have been able to have her identity hidden, not revealed to Cohen, who was trying to press charges against the author of the blog since individuals have the right to “impart information and ideas through any media”. Why should Google have the right to reveal this person’s identity when that person is simply sharing his or her opinion through the Internet? While Article 19 protects the right of the speaker, Article 12 protected the rights of the individual being attacked. Article 12 proclaims that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Since Liskula Cohen is claiming that the statements and remarks by the anonymous blogger are untrue and harmful to her reputation, she has the right to know the identity of the speaker in order to settle the problem. In terms of this case, Cohen won the settlement due to the fact that she had proof that the statements being said were defamatory and it was “Actual malice” on the part of the speaker.

Another example of how the United States uses “actual malice” would be New York Times v. Sullivan. In March of 1960, L.B. Sullivan sued The New York Times for making defamatory statements per se by publishing an ad that made references to the Montgomery police force’s misconduct. Sullivan believed the statements published by The New York Times to be untrue and directed towards him due to the fact that he was the Commissioner of Public Affairs in Montgomery at the time with duties that included supervising the police force. Sullivan saw this as an attack towards his reputation and his job as Commissioner, so he sued the newspaper and initially was awarded $500,000 in damages. This verdict, however, was later overturned when The New York Times appealed. At the second hearing, the court unanimously decided to overturn the decision, concluding that The New York Times had no intention of “actual malice” and did not know the information to be false. They simply published an ad that they thought had truthful information. In cases like these, other factors that play a part in the final decision would be whether or not the statements made were by professional writers with a deadline to publish.

Though actual malice needs to be proven in public cases such as the one involving Liskula Cohen who is a model and in the public eye, this doesn’t hold true when it comes to private individuals. Gertz v. Welch is a case that involved slander and libel towards a private attorney, calling him names such as “Communist fronter” and a participant in conspiracy against the national police. Elmer Gertz decided to bring civil action to Robert Welch, Inc. for publishing false claims and damaging his reputation as a respectable lawyer. In this case, the rule was established that private persons such as Elmer Gertz are more in need of defamation protection that those who are in the public eye.

While the United States take the approach of “actual malice”, Canada decided that “responsible communication” was the better approach. In lieu of discovering that Canadian laws were considered strict in regulating free speech, “responsible communication” came into place in order to give journalists more flexibility in what they were saying as long as it was beneficial to the public. By adapting the method of public interest, some derogatory statements towards individuals can be made if it attributes to the best interest of the citizens. A case that uses this idea would be Grant v. Torstar, in which Peter Grant and Grand Forest Productions decided to sue The Toronto Star for making defamatory statements on their reputation by publishing an article that accused (and exposed) Grant of attempting to make a private deal with a former premier of Ontario to propose a private golf course development. In the end, The Toronto Star won the case since it was determined that the article was of public interest.

Another Canadian case that demonstrates this would be Quan v. Cusson, in which defamatory statements were written by the Ottawa Citizen stating that Constable Danno Cusson falsely represented himself at Ground Zero in order to help rescue efforts, but instead disrupted operations. Danno Cusson won the case by proving that though some of the information that the Ottawa Citizen wrote were correct, not all of the information presented was correct, thus damaging his reputation. Since there was no malice involved in this case, the “responsible communication” was established on appeal. In terms of responsible journalism, factors in this defense include public importance, seriousness, deadline of publication, reliability of source, etc.

Personally, I prefer the United States’ “actual malice” approach due to the fact that it looks more at specific cases rather than generalizing every case to follow certain guidelines. As John Stuart Mill said, “the censored opinion may be true and the accepted opinion may be in error”. Just because an opinion is not accepted by society does not mean that there is no truth in what is said. The American system looks thoroughly at not only the intent of the speaker, but also whether they have actual reason to believe what they are saying to be true.