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Fordham International Law Journal

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In 1982, Canada enacted its Charter of Rights and Freedoms (Charter), which for the first time guaranteed certain fundamental freedoms to the Canadian people. In many respects, the Charter resembles the United States Bill of Rights. The Charter's guarantee of a free press, in particular, is closely modelled on the first amendment of the United States Constitution. However, Canada's common law of libel has not paralleled modern developments in United States libel law. Under Canadian libel law, if a statement is proven defamatory, it is presumed to be false. In contrast, the actual malice standard of United States law provides special protection for the press by presuming the truth of a statement about a public figure or on a matter of public interest.

This Note argues that Canada should recognize a privilege for media defendants similar to the United States actual malice standard in order to guarantee fully the freedom of the press set forth in the new Charter of Rights and Freedoms. Part I examines the recently adopted Charter, and the similarity between its free press provision and the first amendment of the United States Constitution. Part II demonstrates how current Canadian libel law curtails freedom of the press by burdening media defendants. Part III argues that the United States constitutional privilege better protects freedom of the press as guaranteed in the first amendment than has the Charter in Canada. This Note concludes that in order for Canada to ensure media defendants the right of free speech as guaranteed in the Charter, the Canadian courts should adopt a more protective libel standard for media defendants, similar to the actual malice standard in the United States.



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