Introduction
With the current tension in the political landscape in the US, and increasingly, Canada, debates arise as to what speech is protected and what speech should be protected. Around the world, both countries have been regarded as champions of free speech – but that line between what is and is not protected becomes blurred when political speech overlaps with potentially defamatory language. The role of the media has also changed – with oftentimes opponents citing falsehoods or political motives behind the publication of “news.”
The Wall Street Journal (the “WSJ”) has been increasingly inundated with lawsuits filed on behalf of US President Donald Trump. Perhaps the most well known of these is currently proceeding in relation to the WSJ’s publication of an article relating to a birthday card written to Jeffrey Epstein and allegedly authored by Trump. While media outlets are not strangers to lawsuits filed by celebrities or even politicians, the current lawsuit raises important questions about free speech and political speech in the US. This article will, at a high level, examine some important differences in free speech in the US and Canada and opine on what might transpire if the parties to this lawsuit were Canadian and filed the case in Canada.
Basics of Free Speech in the United States (Journalism & Public Figures)
Free speech jurisprudence in the United States is rooted in the First Amendment to the Constitution which reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While the First Amendment contains several important protections, free speech is perhaps the one most commonly associated therewith. Case law is robust and the First Amendment plays an important role in defamation cases, especially when the defendant is a journalist or the plaintiff is a public figure (exactly like the Trump v. WSJ cases).
While the truth of the impugned statement is an absolute defence to a defamation claim, even false statements are also defensible in certain circumstances. If the plaintiff is a public figure, it is not enough for them to demonstrate that the statement was false. Instead, they are required to prove that the defendant acted with actual malice. The term “actual malice” was established in the landmark case of New York Times Co. v. Sullivan (1964), in which it was held that the impugned statement must have been made as knowingly false or with reckless disregard for the truth. This standard arises from the First Amendment’s specific protection of the press, and is much higher than what private individuals must meet. In the private context, the plaintiff need only show that the impugned statement was made negligently. Thus, the First Amendment protects journalists from liability for honest mistakes when reporting on matters of public concern.
In Sullivan, the Supreme Court of the United States emphasized that public discourse should be “uninhibited, robust, and wide-open” even if it includes “vehement, caustic, and sometimes unpleasant sharp attacks” on public officials.
Simply put, in the United States, media outlets must be careful but are not liable for every error and public figures must gather strong evidence to prove actual malice.
Basics of Free Speech in Canada (Journalism & Public Figures)
In Canada, freedom of expression is protected under Section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) which guarantees: “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” This protection is subject to Section 1 of the Charter, which allows rights to be limited if “demonstrably justified in a free and democratic society.”
Canadian courts often balance freedom of expression against other rights, such as the right to a fair trial, privacy rights, and protection from hate speech. This balancing act is guided by Section 1 of the Charter.
Like the US, truth (known in Canada as the defence of “justification”) is also an absolute defence. Unlike the US, Canadian plaintiff public figures do not face a higher burden in defamation cases – they do not need to prove actual malice on the part of the defendant. All plaintiffs in Canada – whether public figures or private individuals – must prove the same basic elements: (1) the statement was defamatory, (2) it referred to the plaintiff, and (3) it was published to a third party. This makes it easier for public figures to sue for defamation in Canada. These elements reveal a very significant difference between US and Canadian defamation law in that the plaintiff in Canada is not required to prove that the statement was false. Therefore, to succeed in the defence of justification, it is the defendant who must prove that the statement was true, sometimes making the defence extremely difficult to prove, especially in cases involving defamatory innuendo as opposed to direct statements.
Canadian courts recognize the importance of journalism in a democratic society, but they also hold journalists accountable for irresponsible (though not malicious) reporting. The 2009 Supreme Court of Canada case Grant v. Torstar Corp. established the defence of “responsible communication on matters of public interest.” To succeed in this defence, the defendant must show that (1) the publication was a matter of public interest and (2) the journalist (or blogger) acted responsibly in verifying the information before publishing. This defence replaced the older “responsible journalism” standard and extends to bloggers and other non-traditional media.
In Canada, journalists must follow ethical standards and verify facts diligently. If they do, they may be protected even if the information turns out to be false. If a statement is false, public figures can sue under the same standard as anyone else. It is therefore much easier for a public figure plaintiff to prove a case in Canada versus the US.
The Trump v. WSJ Litigation – How would it go in Canada?
Given the differences in the American and Canadian legal systems with respect to free speech and defamation – how might Trump’s litigation unfold if it were taking place in Canada?
In the US, Trump must prove actual malice because he is a public figure—i.e., that the WSJ knowingly published false information or acted with reckless disregard for the truth. In Canada, actual malice is not required. Trump would only need to show that: the statements were defamatory, they referred to him, and they were published to a third party.
Clearly, the second two branches of the test are met. However, under Canadian law, it is well established that, in order to be considered “defamatory”, words must contain an imputation that “tends to lower the plaintiff in the estimation of right-thinking members of society generally or to expose him to hatred, contempt, or ridicule.”
Based on the nature of the Epstein matter, it seems reasonable that associating a plaintiff with the impugned letter would meet that definition on a prima facie basis. However, the central question is whether the meaning conveyed by the impugned words genuinely threatened the plaintiff’s actual reputation (see Weaver v. Corcoran, 2017 BCCA 160). In other words, the law seeks to protect the reputation which an individual actually has, rather than the reputation one believes he or she deserves (see Dinyer-Fraser v. Laurentian Bank et al. 2005 BCSC 225). Trump’s claim that the article harmed his reputation would, therefore, be scrutinized in light of his existing reputation as a public persona. Canadian courts could consider whether the alleged defamatory content materially worsened that reputation, especially given his acknowledged past comments and associations.
Further, if the WSJ can prove the truth of the letter’s existence and contents, that would be an absolute defence in Canada, just as in the U.S. In this case, the WSJ claims the letter was released by the Epstein estate and Congress, supporting the truth defence. If this evidence is accepted by a Canadian court, Trump’s claim might fail on that basis alone.
The WSJ could also invoke the defence of responsible communication on matters of public interest. To do so, it would need to show that the story was a matter of public interest (which it clearly is) and the reporting was responsibly conducted, including efforts to verify the letter’s authenticity. If the WSJ met these criteria, it could successfully defend the article even if some details were inaccurate.
Ultimately, if the letter is proven authentic and the WSJ acted responsibly, the case would likely be dismissed. If the letter’s authenticity is in doubt, and the WSJ failed to verify it adequately, Trump could potentially succeed, especially without having to prove actual malice. Therefore, while many of the issues would be the same if the case was brought in Canada, Canadian defamation laws are more favourable to plaintiffs, even in cases involving constitutionally protected freedom of the press.