Journal Article Proposes Two Tracks in Canadian Defamation Law

If you’re interested in defamation law you’d do well to read the recently published piece by Bob Tarantino, “Chasing Reputation: The Argument for Differential Treatment of “Public Figures” in Canadian Defamation Law,” (2010) 48 Osgoode Hall Law Journal 595 [PDF]. The author, a partner at Heenan Blaikie and a blogger at their Entertainment and Media Law Signal argues for the:

recasting the tort of defamation into two different tracks: one for public figures, who pose the highest risk of abusing the tort, and one for private plaintiffs, whose reputational interest is akin to traditional notions of reputation.

This flows in part from his analysis that appellate courts, and particularly the Supreme Court, have developed a less automatic — more “nuanced” — protection for reputation in the first decade of this century, raising the level of importance accorded to freedom of expression. Tarantine posits that:

Some plaintiffs do not need the tort of defamation to protect a reified reputation that is either not demonstrably damaged by defamatory statements or that is (comparatively) easily rectified by their own power. The complaint is that such plaintiffs in some meaningful sense misuse the tort in order to achieve other goals (such as the quieting of criticism).

As Tarantino says, his proposals are “guided by the need to take account of changing technology,” which (in my words) has seen the barriers to public expression reduced to nearly nil. Clearly the courts cannot be asked to chase down every published slight, real or imagined; this article would assist the courts in delineating the notion of “reputation” more precisely and carving out areas less prone to defamation as a trigger-happy tort.