The Scope of Canadian Defamation Injunctions

Hilary Young

doi:10.2139/ssrn.3635650

Abstract

Whereas in the United States, defamation injunctions are largely considered unconstitutional prior restraint, Canadian courts readily order such injunctions. In this paper I explore the justifiable scope of such injunctions and compare that to what courts actually do. Ordering defendants to never speak again about the plaintiff is always impermissibly overbroad, since it prohibits lawful speech. Yet in a study of Canadian defamation injunctions, orders not to speak about the plaintiff constituted 18% of injunctions. Injunctions not to further defame the plaintiff may at first glance seem unproblematic, but may be overly broad. They are unnecessary if there is no reason to think the defendant will continue to defame and they capture too much if “defamatory” is understood to mean “disparaging” – which it sometimes is. Such orders may also be vague in that it is notoriously hard to know in advance whether something is defamatory. Nevertheless, the paper suggests narrow circumstances in which such orders may be justifiable. Ordering defendants not to say x, where x has not been determined to be defamatory, is also problematic prior restraint, but such orders are uncommon. Finally, orders not to repeat a particular imputation, already found to be defamatory, raise certain concerns and should not be ordered as a matter of course. Yet they may be justified where there is a real risk of repetition that would cause serious and irreparable harm. The study reveals not only that Canadian defamation injunctions regularly go far beyond what is justifiable, but also that overly broad or vague injunctions are more likely to be ordered where defendants are self- or unrepresented.

Highlights

This paper explores the justifiable scope of defamation injunctions and compares that to what courts do
While I argue that defamation injunctions can be appropriate if narrowly tailored, the case law demonstrates that unnecessarily broad and vague defamation injunctions are commonly ordered in Canada
David Ardia begins his paper on defamation injunctions by stating: “It has long been a fixture of Anglo-American law that libel plaintiffs are not entitled to injunctive relief; their remedies are solely monetary” (“Freedom of Speech, Defamation and Injunctions” (2013) 55 W & Mary L Rev 1 at 4)

Summary

Introduction

This article assesses the appropriate and actual scope of injunctions in Canadian defamation actions. While I argue that defamation injunctions can be appropriate if narrowly tailored, the case law demonstrates that unnecessarily broad and vague defamation injunctions are commonly ordered in Canada. There are several ways in which defamation injunctions can unjustifiably interfere with free speech They can be ordered in inappropriate circumstances, provide inadequate guidance as to what not to say, and can be broader in scope than necessary. The case law shows that judges regularly order unnecessarily broad defamation injunctions and sometimes order vague ones. This may be more likely where defendants are self- or unrepresented.[4]. Publication, I conclude that under certain narrow circumstances it is justifiable to enjoin a defendant from further defaming the plaintiff. Injunctions granted in Canada regularly go far beyond these justifiable circumstances

Values in drafting injunctions

Findings

Conclusion