Responsible Communication and Protection of Public Participation: Assessing Canada's Newest Public Interest Speech Protections

48 Pages Posted: 4 Mar 2018

See all articles by Hilary Young

Hilary Young

University of New Brunswick - Fredericton - Faculty of Law

Date Written: January 31, 2018

Abstract

This article assesses two new Canadian laws for protecting speech on matters of public interest: defamation's responsible communication defence and the anti-SLAPP provisions in Ontario's Protection of Public Participation Act. The former was adopted by the Supreme Court of Canada in 2009 and seeks to protect speech on matters of public interest – especially journalism. The latter is a procedural mechanism for having actions dismissed at an early stage if they are grounded in expression on a matter of public interest.

The article considers the cases and commentary to date in assessing whether the laws’ stated goals are being met. Given the symposium’s focus on “weaponized defamation” (defined as the “use of defamation and privacy torts by people in power to threaten press investigations”), the article pays particular attention to how these laws protect, or fail to protect, journalism. Its focus is, however, broader than weaponized defamation, in that responsible communication and the PPPA provisions are not limited to “those in power” or to “press investigations”. But it is also narrower in that it considers only defamation, not privacy.

Both mechanisms are useful tools for protecting speech on matters of public interest, but each has flaws, either inherently or that have developed through their application, that prevent them from better achieving their aims. Responsible communication, although flexible and broad in principle, has been narrowly applied. As a result, communication is found not to be responsible when it arguably is. In addition, the defence is being treated as applicable only to journalists, which is, in my view, a misreading of the Supreme Court of Canada’s Grant decision. As a result, the potential of the responsible communication defence to protect speech on matters of public interest is not being met.

Ontario’s PPPA has been successful in getting some SLAPP suits dismissed. However, the serious consequences of a successful PPPA motion mean that courts are sometimes interpreting its provisions unduly narrowly. In addition, it seems that proceedings are rarely dealt with expeditiously, diluting the advantage of the PPPA over a summary judgment motion, for example.

Keywords: defamation, SLAPP, public interest, responsible communication, libel, slander, freedom of expression, public participation

Suggested Citation

Young, Hilary, Responsible Communication and Protection of Public Participation: Assessing Canada's Newest Public Interest Speech Protections (January 31, 2018). Available at SSRN: https://ssrn.com/abstract=3128624 or http://dx.doi.org/10.2139/ssrn.3128624

Hilary Young (Contact Author)

University of New Brunswick - Fredericton - Faculty of Law ( email )

P.O. Box 4400
Fredericton, New Brunswick E3B 5A3
Canada

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