Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Chasing Reputation: The Argument for Differential Treatment of “Public Figures” in Canadian Defamation Law
(2010) 48 Osgoode Hall Law Journal 595
Excerpt: pp. 597-8; 628-30
(Footnotes omitted; they are available in the original, via the hyperlink above.)
A welcome development in some recent decisions is a movement away from describing the task of the courts as balancing reputation and expression, in preference to describing the undertaking as one of reconciling the competing interests5—with reputation cast as the junior stakeholder. The privileging of expression over reputation can be profitably described as a mechanism employed by the courts to introduce a more nuanced understanding of reputation into Canadian defamation law—both in terms of how it is socially constructed and how the interest should be protected. While Canadian judges, like their Commonwealth siblings, are unwilling to adopt a New York Times v. Sullivan6- type approach to defamation law (which would require public figure plaintiffs to prove actual malice in order to be successful at trial), doctrinal and technological developments point in favour of an adapted cause of action for public figure plaintiffs under Canadian law. To date, modifications made by Canadian courts have been entirely in the area of defences (i.e., introducing a “responsible communication on matters of public interest” defence7 and expanding the availability of the fair comment defence8). But if courts are serious about circumscribing the chilling effect of defamation claims, modifications will need to be made to the structure of the tort in order to lessen the likelihood of actions being commenced in the first place and to blunt the impact of claims that are in fact brought.
Expressly conceptualizing reputation within its proper context (i.e., recognizing its contingent and constructed nature and taking account of the new mechanisms available to individuals to affect that construction) should lead to an adaptation of defamation law into two related but distinct causes of action: one for individuals who lack the resources and wherewithal to actively construct their reputation and one for public figure individuals who do possess those advantages. Assuming the Charter represents a restatement of our fundamental values, if courts meaningfully engage their responsibility to modify the common law in accordance with dynamic social processes, and if the current state of the media represents an elemental change in how information is disseminated, then a reassessment of the nature of reputation and how it is protected is required.
1. PUBLIC FIGURE PLAINTIFFS
The concept of the public figure has gained little purchase in Canadian defa- mation law, certainly not as a formal category of analysis. In the United States, by contrast, the distinction between public figures and private figures exists in multiple torts (such as breach of privacy and defamation). This critical analytical distinction gives rise to the requirement that a public figure defamation plaintiff, in addition to proving that the statement was false, must prove a defendant’s actual malice (i.e., knowledge of falsity or conscious disregard as to the truth) in order to win a defamation claim.169 The concept itself is fluid and nuanced, providing a purposive device that can be used to ascertain when the “second order” of defamation claim proposed herein is to be used. A cluster of metrics can be used to determine whether a particular plaintiff qualifies as a public figure. Under US case law, an individual qualifies as a public figure when public attention is focused on him by virtue of “accomplishments, fame, or mode of living, or [adoption of] a profession or calling” that provides the public with “a legitimate interest in his doings, his affairs, and his charac- ter.”170 US courts also look to whether the persons in question have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”171
The corollary of adopting a public figure distinction is the creation of a “private person” category. US defamation law allows private persons to prove and recover actual damages using a negligence standard (rather than the more stringent actual malice standard)172 on the basis that private persons are more vulnerable to injury than public figures and their reputations are more deserving of protection.173 That recognition is consistent with the argument advanced herein, namely that there is something qualitatively different about individuals who possess reputation as celebrity: their discursive power to yoke the media to their reputation-constructing ends.174 Discursive power is the ability not just to erect a website putting his or her version of the story online (which virtually anyone can now do), but also the ability to cause mass media outlets to devote attention to his or her side of the story.
While Canadian courts have repeatedly expressed reluctance to embrace Sullivan-style changes regarding actual malice,175 three matters must be stressed: first, this proposal is markedly different from Sullivan and does not conflict with the reasons for which the SCC disparaged Sullivan; second, the public figure concept itself predates the Sullivan decision as a defence applicable in infringement of privacy cases and so can be relied on without being dragged into the vortex of debate over the advisability of Sullivan and its progeny; and third, Canadian defamation law already recognizes that certain plaintiffs require different treatment vis-à-vis the remedies available to them,176 which can be construed as a latent foundation for acceptance of the public figure concept. The public figure concept was entrenched in US defa- mation law in the concurring reasons in the Curtis Publishing Co. v. Butts177 decision, which expanded the reach of the Sullivan actual malice requirement beyond public officials. The rationales for the extension of the actual malice rule to public figures are congruent with those enunciated in the Cusson, Grant, and WIC Radio decisions: “the public need for uninhibited debate about the activities and opinions of those with informal political and social power.”178 Both concurring opinions in Butts expressly note the ability of the public figure to access and use communications media as a counter to criticism and as a positive self-help remedy in the form of a “tool for rebutting libels.”179 This is also congruent with the argument advanced in this article that the differential ability to access reputation as a celebrity warrants differential treatment with respect to access to the defamation tort and its remedies.
The public figure concept admits of a variety of sub-categories (such as those who strive for notoriety regardless of talent or profession) and exceptions (such as private individuals who unwillingly or unintentionally become the subject of public scrutiny). The question of whether a plaintiff is a public figure should be heavily weighted toward a determination of whether the plaintiff has access to the media and, therefore, possesses discursive power. Greater recognition of the fact that Canadian courts have been willing to treat different plaintiffs differently (even if such treatment has been non-systematic because it is often unarticulated) would parallel developments in other areas of law, such as privacy law, where the “celebrity” status of a plaintiff is a factor to be taken into account when assessing whether there exists a reasonable expectation of privacy.180
The public figure concept is also broader than the term “celebrity” implies— celebrity denotes an individual engaged in (or at least peripheral to) one of the entertainment industries (film, television, publishing, music, et cetera). To be meaningful, however, “public figure” must be broad enough to include not just celebrities, but also public officials and individuals who possess either policy-level public power or private power that is exercised in the public sphere. It needs to be broad enough to encompass such persons as public intellectuals, prominent business people, and NGO leaders, subject always to their capacity to wield discursive power.