By MAIJA KAPPLER
Special to the RJRC
An archaic Canadian law against criminal libel is being used with increasing frequency to shut down political dissent and criticism of police officers, judges and powerful institutions, new research by Ryerson University journalism professor Lisa Taylor suggests.
Convictions for criminal libel averaged 18 cases per year between 2005 and 2008, Taylor found. She and her research partner David Pritchard of the University of Wisconsin-Milwaukee combed through digital archives, criminal judgements and media reports to assemble the data and found that the number of convictions has grown steadily. Between 2009 and 2012, there were 37.7 criminal libel convictions annually – more than double the earlier figure.
A quarter of these convictions are cases related to political dissent, in which individuals were charged for taking on powerful organizations. That means charges have been laid for crimes like warning against police brutality, protesting controversial rulings by judges and criticizing municipal authorities on Facebook.
Many legal scholars consider the criminalization of critical or insulting language to be anachronistic. It would be easy enough to assume that it’s only implemented in extraordinarily rare cases, Taylor says — but that’s not what happens.
“When I think ‘extraordinarily rare,’ I’m thinking four-leaf clovers, albino alligators,” Taylor, a lawyer by training, said during a Nov. 1 presentation organized by Ryerson’s Centre for Free Expression. The growing number of criminal libel convictions point to prosecutions that aren’t as rare as everyone thought.
Libel is usually a civil issue. If an individual’s reputation suffers because something untrue or unfair has been written or broadcast about them, the usual course of events would involve launching a suit and seeking financial restitution. Writers, editors, producers and media organizations can all be sued for libel, and plaintiffs are entitled to more money if they’ve suffered extreme humiliation or shown that the defendants acted with malice.
For individuals and media organizations, the threat of civil libel charges is a deterrent against treating people with carelessness or callousness. Losing a libel case and having to pay damages is a punitive measure.
But libel can also be a criminal offence. Under Canada’s Criminal Code, “defamatory libel” is punishable by a prison term of up to two years, or up to five if the defendants knew that what they were publishing was false. Taylor and Pritchard’s research focused mainly on Sections 300 and 301 of the code. Section 300 carries a maximum penalty of 5 years in prison for libelous speech that is a “known falsehood,” while Section 301 carries a two-year maximum sentence for any defamatory libel.
Another surprising feature of the law is that a person can be charged with criminal libel even if what they published is true. A plaintiff can’t win a civil case if what’s been said about them is demonstrably true, no matter how defamatory. But in a criminal case, unlike a civil case, truth is not a defence.
Criminal libel prosecutions usually fall into two categories. Taylor says the first category, political dissent libel, makes up about 25 per cent of criminal libel cases and involves “strong, harsh, maybe dishonest language against powerful people.”
Karen MacKinnon, a former city councillor in Drumheller, Alberta, was charged twice under Section 301 of the Criminal Code for a Facebook post in which she called a local politician and an Alberta Crown prosecutor “repulsive, corrupted, lying, thieving, deviant bastards both” and, in a later post, called that same prosecutor “a pet kangaroo.”
David Charney, at the time an Osgoode Hall law student and well-known activist against violent police practices, was charged with criminal libel for distributing posters that accused a specific police officer of brutality. (The charges were dropped and the case became a civil matter six months later, but nothing ever came of it.)
In another case, a man picketed a judge who had awarded custody of his children to the man’s ex-wife, who then fled the jurisdiction; the man was charged with criminal libel for bearing a sign that said the judge permits child abuse. The charges were dropped, but not until two and a half years later.
Taylor told the audience at the Ryerson School of Journalism that the power dynamics in these cases negate the need for libel action — criminal or otherwise. Judges, prison guards and police officers should be able to withstand criticism from the people they have authority over, even if some of that criticism is harsh or even untrue.
“Only the most naïve person could ever assume one of these positions and imagine that people are only going to say nice things about them,” Taylor said. “They’re powerful people. We are critical of power. We should be critical of power.”
Even when nothing comes of these charges — when they’re dropped after a few months, or end up as civil case that go nowhere — the threat of criminal prosecution has a chilling effect. Taylor referred to something her co-researcher Pritchard said: In these cases, having to contend with possible jail time is enough to discourage and to penalize. The process is the punishment.
The second kind of criminal libel prosecution is less obviously defensible. Failed relationship libel usually occurs after an intimate relationship has ended and one party sets out to smear the other. In one case Taylor examined, a man put up posters with his ex-girlfriend’s name and photo that falsely accused her of pedophilia.
Taylor said that eliminating criminal libel law wouldn’t mean allowing that kind of behaviour to go unchallenged. The woman would have easily won a civil case, and the fact that she opted to go to the police instead demonstrates the financial inaccessibility of civil lawsuits (the woman was a student at the time). If the ex-boyfriend continued his attack campaign, Taylor added, there are many other criminal offenses that would cover his crime: criminal harassment, for example, intimidation or incitement of hatred.
Taylor argued that criminal libel should be removed from Canada’s Criminal Code. It is “antithetical to free expression,” a right protected by Canada’s charter, she said, noting that the U.K. has dispensed with its criminal libel laws and there are no federal criminal libel laws in the U.S. (although some states do still have criminal libel laws on the books.)
Canada’s criminal libel law, she said, is being used in lieu of more specific laws. It serves no legitimate purpose, Taylor argues, and keeping the contradictory and unclear law on the books has troubling repercussions: it criminalizes dissent against powerful groups and is an affront to free speech.
“It’s abuse of power, full stop,” says Taylor.