It is finally here again – football season: games,
rivalries, playoffs, rising and falling stars, statistics galore and best of all, tailgating. I bet you can hardly wait to see if the Saskatchewan Rough Riders thump the Hamilton Tiger-Cats!
No, we are talking about the Canadian football season. What is that? Is that some version of soccer or something? Actually, we have our own
Canadian version of gridiron football, similar to the NFL but with a few key differences:
The Canadian Football League (CFL) is comprised of teams from across the country, including the Saskatchewan Rough Riders in Regina (where Cambridge LLP's Chris Macleod is from) and the Hamilton Tiger-Cats (where Cambridge LLP's Jon Giacomelli and Adam Cappelli are from).
The season begins in the heat of Canadian summer (a few weeks if we're lucky) and continues until the late fall. The ball is bigger, the field is longer and
wider, and in the Canadian game you only get 3 tries to get a first down!
The final game is often played in a snowstorm for a quintessentially Canadian named trophy called The Grey Cup. I am not kidding, THE GREY CUP. How much more Canadian can you get? Who else but Canadians could get excited over something called the GREY CUP? Well, we do and have done so for 109 years.
I know you will want more information about this Canadian sporting curiosity. Please call Jon or Adam or Chris.
CYBERLIBEL IN THE US AND
CANADA
The comparison between American and Canadian
football is an apt analogy to illustrate the differences between Canadian and American libel law.
On both sides of the border, the cyberlibel landmines are acute, and the pitfalls can be grave if not understood.
In this new era of cyberlibel, Canada may well prove to be a great option for the commencement of proceedings or, at least, the application of the law of
Canada. In many cases, our approach to defamation law may be a decided advantage. Just as in Canadian and American football, similar words have different meanings when looking at defamation law. In the late1960s in high school, the author (Potts) played corner linebacker, which in American football is called outside linebacker. To further confuse matters, in Canadian Football corner linebackers are called weak-side linebackers. The weak-side
linebacker lines up on the short side of the field and can drop back into pass coverage, or contain a run. In contrast, the strong-side linebacker lines up on the wide side of the field, and usually focuses on stopping the run.
There are also differences in terminology and meaning when comparing the American and Canadian approaches to defamation law. In recent years, we have seen many
cases where American counsel needed to understand the nuances of Canadian defamation law before deciding whether to commence or continue (if acting for a defendant) litigation in Canada, or the U.S., For now, note these takeaways:
- The First Amendment has no application in Canada. Neither does the seminal case of N.Y. Times v Sullivan;
- Similarly, the public figure defence; the Constitutional
protection of anonymous publications, and s.230 of the C.D.A. have no application in Canada;
- Canadian Defamation law, with a few exceptions and differences, is similar to defamation laws of the U.K. and Australia and U.S. libel law prior to N.Y. Times v Sullivan. The defendant, not the plaintiff, must prove the truth of the statements or allegations they have published. Upon proof of publication, presumptions
of malice in law, falsity, and damages at large arise;
- Express malice in Canadian law, which is relied upon to defeat the defences of fair comment and qualified privilege, is completely different than constitutional express malice in U.S. libel law;
- Pleadings are of pivotal importance in Canadian libel law and can make or break a case;
- Intermediaries, like Google and Facebook, have only a "qualified
immunity" in Canada: not "absolute immunity", as under s. 230 of the CDA in the United States;
- To add to the confusion, Ontario and British Columbia have anti-slapp legislation, as do many states in the US. However, this U.S. legislation, not surprisingly, is different in substance and practice from the Canadian anti-slapp legislation.
We will have more on the differences and similarities between Canadian and U.S. defamation law in upcoming Bulletins in this series. Stay tuned, and remember that
communication between counsel on both sides of the border is the key to our clients' success!
