Public Institutions as Defamation Plaintiffs

Abstract

It is reasonably well settled in Canadian common law that governments cannot bring defamation actions against citizens. That said, uncertainty remains about the scope of the rule (i.e, what counts as government for the purposes of the rule) because of a lack of case law, and because cases rely on different rationales, including the chilling effect of defamation actions on democratic discourse, the public nature of a government’s reputation and the fact that governments generally have the ability to speak out to try to correct misinformation about them.This article examines the law in other common law countries and Canada with two goals in mind: first, to understand the current Canadian law with regard to governments’ and other public bodies’ ability to sue in defamation; and second, to ground a normative analysis. Specifically, I assess how the rule against government defamation actions should be applied to public institutions such as school boards, police forces and crown corporations. I propose that like governments, public institutions should be prohibited from suing in defamation. As a starting point, public institutions are institutions subject to access to information requests under federal and provincial law. I justify this admittedly broad prohibition with regard to the nature of public institutions’ interest in reputation, the importance of speech about such institutions, the limitations of defamation defences in protecting speech on matters of public interest, and the ability of public institutions to communicate with citizens to try to correct misinformation.