Defamation

Free expression outweighs reputation protection: Winkler

By Patricia MacInnis, Senior Editor

A former member of Parliament’s unsuccessful defamation case against a major B.C. newspaper underscores a recent trend by the courts to balance interests more towards freedom of expression rather than protection of a person’s reputation, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

The man’s claim was based on an article that contained allegations of unpaid debts, improper campaign spending and unsuccessful business ventures, which led to his resignation from the Liberal Party caucus, reports the online legal news outlet.

At issue was the allegation the former politician received a personal loan from his mother-in-law just before her death, something that was established at trial to be untrue, the legal site says. The trial judge ruled most of the article was covered by responsible communication, but "the allegations about the loan were 'a distinct and separate subject in the story that was plainly untrue and was not investigated with sufficient diligence,'” The Lawyer's Daily notes.

“Justice David Tysoe, who wrote the unanimous decision of the Court of Appeal, ruled the trial judge erred in applying the defence of responsible communication separately to different portions of the article, rather than its entire content,” it adds.

In the matter, the B.C. Court of Appeal ruled the lower court judge was wrong in not considering whether the overall tone of the article was responsible communication rather than just one section while the plaintiff’s lawyer said he fears the decision could allow people to publish false information and escape responsibility, the publication reports.

However, "When the article is considered as a whole, the appellants are entitled to succeed on the defence of responsible communication,” the judge wrote.

Winkler, principal and founder of Winkler Dispute Resolution, who was not involved in the case and comments generally, says the most significant aspect about the emergence of the responsible communication defence is that for the first time it allowed a defendant to be wrong, publish something that was false, and still escape liability.

“And what this case perhaps does is that it further tips the balance in favour of the protection of expression by treating all of the charges in the communication as a single publication rather than treating one or more of them as separate charges,” he says.

Going forward, Winkler says the courts will have to be careful in their consideration as to whether the contents of an article constitute a single charge or separate and distinct charges.

“If the court properly undertakes that analysis then the media shouldn’t be able to just throw frivolous and perhaps false allegations into what otherwise would be a matter of public interest,” he says.

If the media does abuse the application of this decision, then ideally the court will decide that what they’ve thrown in constitutes a separate charge and treat it as such. However, in this matter, the court found this wasn’t the case, Winkler says.

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