The Toronto Star by Hilary Young 17 January 2016
In 1989, Memorial University professor Ranjit Chandra committed flagrant academic fraud. He invented data showing that certain baby formulas, made by companies that were paying him, helped prevent allergies. Upon discovering the misconduct, Memorial confronted the professor, who resigned. But it didn’t reveal its findings to the public, nor to journals that published Dr. Chandra’s papers. In fact, the baby formula paper was only recently retracted, after 25 years. Last week it was announced that he’d been stripped of his Order of Canada.
One reason Memorial stayed quiet was the threat of a defamation — or libel — lawsuit.
Defamation law’s ability to silence truth is a serious problem. The threat of a lawsuit is enough to make most people retract or stay silent. Silence is easy and silence is cheap; a lawsuit is neither. It is hard to blame people for backing down when their house or retirement savings could be on the line. Yet the cumulative effect of all of this silence is that the public is denied important information.
This is known as the “chilling effect” of defamation law and its dangers have been recognized by scholars and courts. Even large media organizations sometimes choose not to publish reliable information because of the risks of litigation. For example, if sources are reliable but unwilling to go on the record, a media organization might have a hard time proving its case in court.
The CBC did broadcast a documentary about Dr. Chandra, despite the risk. For its troubles, it was sued for $132 million. Although the CBC eventually won, it spent more than 1.5 million (of our) dollars defending its right to say what it said.
We must be careful not to make unfounded allegations that could ruin a person’s career. But where information is reliable and in the public interest, defamation law should not be a barrier to its publication.
So what can be done to help prevent the law’s chilling effect while recognizing the importance of protecting reputation? One solution has been to create a new defence of responsible communication. This is an improvement — especially for media defendants — but given the cost of litigation, new defences alone will not solve the libel chill problem.
Another approach is to enact “anti-SLAPP suit” laws. A SLAPP suit is a suit without merit, whose aim is to silence critics rather than to vindicate legal rights. Ontario and Quebec have laws that allow such suits to be dismissed at an early stage, and New Brunswick is considering an anti-SLAPP bill. These laws are helpful, but it is still often hard to identify a SLAPP suit without having a trial.
Some scholars have proposed yet another change — one I endorse. Currently, the person alleging defamation (the plaintiff) does not have to prove that what was said about her was false in order to succeed. Instead, the defendant has to prove it was true (or rely on some other defence). Instead, the plaintiff should have to prove falsity. In Dr. Chandra’s case, that means that instead of the CBC proving that its broadcast was true, Dr. Chandra would have had to prove it contained lies.
This may seem like a small change but it could have big effects. It can be hard to prove that true things are true, especially at trial, years after the fact. If the plaintiff had to prove that what was said was false, that would reduce incentives to threaten or bring weak defamation actions. It would increase costs for plaintiffs and decrease their chances of winning. This is perhaps unfortunate for plaintiffs with valid claims, but this allocation of proof is no different than for other civil wrongs, which require the plaintiff to prove that a wrong was committed.
This shift would not eliminate defamation law’s chilling effect: it would still be easy to threaten legal action and would still be easy for people to stay silent in the face of such threats. But in addition to other changes to the law, making the plaintiff prove that what was said is false could help minimize libel chill. In particular, it is hoped that institutions like large media outlets and universities would take comfort in knowing that although defending a law suit is expensive, they have a better chance of coming out on top in the end. That in turn may make them more likely to communicate the information they have on matters of public interest.
Hilary Young teaches law at the University of New Brunswick.