![Sample our Humanities journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5939/TOC-Subject-Sample-2021-Humanities.jpg"})
ABSTRACT
The Supreme Court of Canada’s most recent pronouncement on defamation and anti-SLAPP law concerns allegations of bigotry. While the Court protected these allegations as valuable counterspeech, the case shows that anti-SLAPP laws can add complexity rather than simplifying. And while defamatory meaning wasn’t squarely at issue in Hansman, I argue that the case shows that courts continue to take an approach to defamatory meaning that is divorced from reputational harm. When properly grounded in the question of the effect of the words on reputation, many allegations of bigotry are not defamatory in meaning, regardless of whether they are also protected by fair comment.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Hansman v Neufeld [2023] SCC 14.
2 Ibid [80].
3 As discussed below, on an anti-SLAPP motion the plaintiff has the onus of showing that there are grounds to believe that defences will fail.
4 See Hansman v Neufeld [2023] SCC 14 [52] referring to Platnick v. Bent [2020] SCC 23 and 1704604 Ontario Ltd. v. Pointes Protection Association [2020] SCC 22.
5 Hansman (n 1) [14].
6 Strictly speaking the issue wasn’t whether the speech was fair comment but whether the plaintiff had satisfied his onus of proving that there are grounds to believe that the fair comment defence will fail. See Protection of Public Participation Act, SBC 2019, c 3 at s 4(2)(a)(ii).
7 For a discussion of bigotry and defamatory defamatory meaning, see Kate Sutherland, ‘The Impact of the Tort of Defamation on Public Discourse About Racism’ (2009) 44 Supreme Court Law Review 135, 136–139.
8 Hansman (n 1) [14].
9 ibid.
10 ibid.
11 ibid [17–31].
12 There was an unsuccessful motion to strike: Chilliwack Teachers’ Association v Neufeld [2021] BCHRT 6.
13 Protection of Public Participation Act, SBC 2019, c 3.
14 ibid.
15 Protection of Public Participation Act, SBC 2019, c 3 at ss 7 and 5.
16 Hansman (n 1) [39].
17 Hansman v Neufeld [2021] BCCA 222 [26–40].
18 ibid [65].
19 Hansman (n 1).
20 ‘Both [WIC Radio] and [Hansman] involved defamation suits arising out of a public debate in the media over educational policies and practices about the 2SLGBTQ+ community. In each case, the plaintiff was a public figure who expressed views perceived by the defendant to be discriminatory, which invited harsh criticism by the defendant.’ Hansman v Neufeld [2023] SCC 14 [120].
21 Hansman (n 1) [71–72].
22 ibid [77].
23 Ibid [74–75].
24 ibid [77].
25 ibid [80].
26 ibid [81].
27 Hansman (n 1) [84–89].
28 ibid [155].
29 ibid [175] (Côté J, dissenting).
30 1704604 Ontario Ltd v Pointes Protection Association [2020] SCC 22; Platnick v Bent [2020] SCC 23.
31 Technically the law does not require proof of injury, just that there be sufficient proof of injury so that the public interest in proceeding outweighs the public interest in protecting the expression. But unless the expression is of very little value, that will require some proof of reputational harm. Such harm can be inferred from the circumstances, however, and needn’t be pecuniary.
32 Hansman (n 1) [67].
33 It’s unclear whether Hansman paid his own costs or whether his union did, but this is not the point. Further, while the anti-SLAPP laws provide for full indemnity costs to the defendant when a SLAPP is dismissed, costs on appeals generally follow the event at a less than full indemnity rate.
34 ‘Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (“Strategic lawsuits against public participation”)’, 2022/0117 (COD), Article 9, 30 <https://data.consilium.europa.eu/doc/document/ST-9263-2023-INIT/en/pdf> [accessed date].
35 See Hilary Young, ‘Canadian Anti-SLAPP Laws in Action’ (2022) 100 Canadian Bar Review 186, discussing the inevitability, in an adversarial legal system, of lawyers putting their best foot forward on the merits, rather than the motion being more of a screening mechanism, 199–201.
36 Hilary Young, ‘Canadian Anti-SLAPP Laws in Action’ (2022) 100 Canadian Bar Review 186.
37 Anti-SLAPP law is not confined to defamation law, but many anti-SLAPP motions are brought in relation to defamation actions. For more on this in the Canadian context, see Young (n 37).
38 Though there is no single definition of defamatory meaning, courts tend to cite Sim v Stretch (1936) 52 TLR 669 (UKHL), [1936] 2 All ER 1237, 1240: ‘would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’. Right-thinking refers to ordinary, reasonably thoughtful people. The test is objective. Color Your World Corporation v Canadian Broadcasting Corporation [1998] 156 DLR (4th) 24 (ONCA), 36.
39 Neufeld v Hansman [2019] BCSC 2028 [88]. See also Neufeld v Hansman, 2021 BCCA 222 [13].
40 Hansman (n 1) [78].
41 ibid [160] (Côté J, dissenting).
42 ibid [72].
43 For England, Defamation Act 2013, s1; for Australia, all states but Western Australia and the Northern Territory now have a serious harm requirement. See e.g. Defamation Act 2005, Victoria, s 10A.
44 Hansman (n 1) [165] (Côté J, dissenting).
45 Best v Weatherall [2008] BCSC 608 [22].
46 Blake & Ors v Fox [2022] EWHC 3542 (KB).
47 Blake & Ors v Fox (Re Trial by Jury) [2022] EWHC 1124 (QB) [2–3].
48 ibid [5].
49 ibid [6].
50 ibid [7].
51 ibid [7].
52 ibid [17].
53 Blake & Ors v Fox Blake & Ors v Fox [2022] EWHC 3542 (KB) [55, 57].
54 Blake & Ors v Fox Blake & Ors v Fox [2022] EWHC 3542 (KB) [59]. England’s statutory honest opinion defence requires that the ‘basis of the opinion’ be stated in ‘general or specific terms’. See Defamation Act 2013, s 3(3). According to the Court of King’s Bench in the same decision, the statutory language reflects a “liberalising” of the honest opinion defence and s 3(3) shouldn’t be interpreted too narrowly [38–40]. Yet the judge found that without referencing Fox’ tweet in some way, the statutory provision wasn’t satisfied.
55 I could find nothing definitive that simply repeating the plaintiff’s words is not publishing. Perhaps it is, though I would advocate for a rule, like the rule that merely hyperlinking isn’t publication (Crookes v Newton [2011] SCC 47), that accurately repeating or pointing to the plaintiff’s own words isn’t publication.
56 WIC Radio v Simpson [2008] SCC 40 [69].
57 WIC Radio v Simpson [2008] SCC 40 [70], citing Davis & Sons v Shepstone [1886] 11 App Cas 187 (PC) 190.
58 As discussed above, ‘changing minds’ is not actually the test of defamatory meaning; it is possible that something is defamatory without actually affecting reputation if the audience is not right-thinking. However, since defamation’s restriction on expression can only be justified by the need to protect reputation, this argument that there should be defamatory meaning without reputational harm rests on weak ground.
59 Consider e.g. St Lewis v Rancourt [2014] ONSC 4840 where the defendant was held liable for referring to a black law professor as the university president’s “house negro”. Where larger groups are subject to discriminatory speech, defamation often turns on the issue of identification, as in Bou Malhab v Diffusion Métromédia CMR [2011] SCC 9.
60 Kate Sutherland, ‘The Impact of the Tort of Defamation on Public Discourse About Racism’ (2009) 44 Supreme Court Law Review 136.
61 Hilary Young, ‘But names won’t necessarily hurt me: Considering the effect of disparaging statements on reputation’ (2011) 37(1) Queen’s Law Journal 1.
Additional information
Notes on contributors
Hilary Young
Hilary Young is a professor in the University of New Brunswick's Faculty of Law. She is one of Canada's leading defamation scholars. Her other research and teaching interests include torts, remedies and health law. She is one of the authors of Linden and Feldthusen's Canadian Tort Law. Her work has been cited by courts, including the Supreme Court of Canada.