Hilary Young, “Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs”

Working Abstract

Corporations may sue in defamation in much the same way as individuals. Although they may not recover for pain and suffering, the plaintiff­friendly features of the law apply equally to corporations and individuals. Specifically, a plaintiff need only prove that the defendant published something about the plaintiff that would make an ordinary person think less of the plaintiff. The tort is essentially one of strict liability (subject to the responsible communication defence). Since falsity is presumed, the defendant must disprove falsity or establish another defence. Damages are also presumed.

These features of defamation law have been widely criticized, but are at least arguably justified by the important dignitary interest in reputation. Corporations, however, have no dignitary interest in their reputations. It is therefore much harder to justify defamation law as applied to corporations.

Additional reasons why defamation law overprotects corporate reputation include the importance of speech about corporations, the chilling effect of the law on such speech, the availability of other legal and extra­legal means of protecting corporate reputation and the ineffectiveness of defamation law at rehabilitating reputation or compensating for its loss.

The article therefore argues for significant changes to defamation law as applied to corporate plaintiffs. Eliminating the presumptions of falsity and damages would be welcome, but the article ultimately argues for an approach like Australia’s, whereby corporations are denied standing to bring defamation actions at all.

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