08/11/2011 12:28 EDT | Updated 10/11/2011 05:12 EDT

Yet Another Blow to Free Speech

Academic discourse is mostly known for being either one of two things -- dry as toast or stinging as nettles -- all in the interest of testing, scrutinizing, and assessing scholarly claims. Outbreaks of politeness are rare. Why, then, should academics expect to be able to recover damages for unfavourable book reviews?

The Ontario Court of Appeal has decided that one such academic, Mr. Gunnar Paulsson, can proceed with his civil suit against the U.S. publisher of the academic journal, The Slavic Review, and its book reviewer, Australian academic Leo Cooper, for publishing a stinging book review. As Mr. Paulsson was a resident of Ontario, the Court declared that it had 'presumptive jurisdiction' over this sort of lawsuit.

The Court has not yet decided that defamation (or, in its written form, libel) has occurred in this case requiring the payment of damages. That will happen some time later in the proceedings. The reason to worry now is that the Canadian defamation law remains trapped in Victorian garb. Its common law rules are highly protective of reputation. Competing values, like the constitutional guarantee of freedom of expression, merely are weighed into the equation rather than given priority.

The common law of defamation presumes that defamatory statements are false and that damages have been suffered. The onus shifts to the defendant to show that the statement falls within one of four exceptions. Typically, the defence of "fair comment" is invoked where a statement of opinion is at issue. In order to satisfy this defence, the speaker's defamatory statement must be on a matter of public interest, and an honestly held viewpoint based upon provable facts. Courts are required, then, to assess whether the statement was objectively reasonable. How is a speaker to know this in advance? What about unreasonable statements on matters of public interest -- should these not be protected? If malice vitiates the defence of fair comment, what about opinion that is excessively intemperate -should that be considered malicious? With so many doubts about the availability of the defence and its parameters, the law appears too protective of reputation.

The Supreme Court of Canada recently has been relaxing the old common law rules, to its credit, principally in respect of journalists. In 1995, however, the Court ruled that the 19th-century common law of defamation was wholly consistent with the constitutional guarantee of freedom of expression and so not in need of reform. In 2008, the Court revisited the defence of fair comment and concluded that it need not jettison the requirement of "honest belief." Judicial assessment of the reasonableness of the viewpoint expressed will still be required to invoke this defence. Though the judge-made law is beginning to evolve it is not likely to end up radically reformed.

So it is not encouraging when a Canadian court takes jurisdiction in a case of alleged academic libel when Canadian law remains shackled in Victorian values. The prospects that academic freedom -- an idea intimately connected with robust free speech doctrine -- will be valued over and above reputation are uncertain. The Court has yet to rule that academic freedom is a component of constitutionally protected freedom of expression. The more robust American free speech tradition moved some time ago in this direction while the European Court of Human Rights recently has done so. Unless the Supreme Court of Canada radically reforms libel law in the next year or two, or reforms the rules for taking jurisdiction in such cases (two such decisions are pending here and here, the publishers of The Slavic Review have reason to worry about their own reputation.

An English libel lawyer indicates that there has been a huge rise in the number of libel cases involving academics. This is cause for concern as Canadian law is modeled upon the English one. There is some reason to be encouraged, however, following a decision of a French Court (le Tribunal de grande instance de Paris) earlier this year. Israeli-academic, Karine Calvo-Geller, who also happens to hold dual French and Israeli citizenship, sued Professor Joseph J.H. Weiler, editor of the European Journal of International Law and its allied book review website, for defamation. The Court chastised Calvo-Goller for 'forum shopping' -- suing in a plaintiff-friendly jurisdiction without any substantial connection to the place. This amounted to an abuse of process. The Court concluded that, in any event, the book review expressed "a scientific opinion of a work which never goes beyond the limits of free criticism to which any author of an intellectual work is exposed."

Mr. Paulsson's is not a case of libel tourism, though there is no prospect of being able to enforce a judgment against the publisher in U.S. Courts. His suit, nevertheless, gives us reason to worry about the future of free speech in Canada. It is time for legislatures to step in and vindicate our constitutional rights if the courts will not.