Response２

Response #2
According to The Universal Declaration of Human Rights, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation (Article 12).” Also, Article 19 states that, ” Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (Article 19).” Because of these two fundamental rights, the balance between freedom of expression and restriction on personal libel is an important issue. Although the UDH is universally accepted, the American court system and Canadian court system have a very different approach when it comes to a law case of personal libel.
American court system employs different fault levels on libel cases. Basically, the plaintiff has to prove that there is an actual malice – knowing the defamatory statement was false, or authenticity of the defamatory statement is recklessly treated. There also are important factors to consider such as whether the speaker was professionally trained, on a deadline, believed that the source to be true, had no reasonable doubt about the possibility that the defamation statement was true. Also, if the plaintiff was a public official or all-purpose/limited public figure, the speech is more likely to be protected.
To illustrate the difference, I employ the case of New York Times Co. v. Sullivan in 1964. In this case, the New York Times was sued for putting up an ad which was perceived as defamatory by the plaintiff. The burden of proof was on the plaintiff. However, Sullivan lost the case because the court decided that the New York Times Co. did not commit an actual malice. In this case, the speech “was not made with knowing or reckless disregard for the truth.”
Another example is the case of Gertz v Welch which illustrates the vulnerability level of personal libel. In 1974, Elmer Gertz, who is a lawyer, sued the John Birch Society for a defamatory statement claiming that Gertz was part of a communist conspiracy. One of the focuses of this case was whether Gertz was “a public figure” or not. In the end, Gertz won the case, and the court decided that Gertz is a private figure who is more protected from libels.
On the other hand, the Canadian court, in which libel law is very much influenced by England, has a very different approach on libel cases. The Canadian new approach for libel case defense is called “Responsible Communication.” In this defense, public interest is a key. The defense of “the publication is on a matter of public interest” can be applied. Because the proof of burden is on the speaker in Canada, the speaker has to verify that the defamatory statement has regards to elements such as “the seriousness of the allegation, the public importance of the matter, the urgency of the matter, the status and reliability of the source.”
An example case of the Canadian defense is Grant v. Torstar. In this case, The Toronto Star was sued for writing an article about “the man had used his friendship and political connection with a former premier of Ontario to essentially circumvent the approval process for reviewing plants to expand a golf course (The New York Times).” Under old laws, the news paper company lost the case; however, the publisher had a chance to win by employing the “responsible communication defense” because the matter serves public interests and the status and reliability of source is fulfilled.
For another example, in the case of Quan v Cusson, The publisher was sued for writing a defamatory report about a former police officer who falsely identified himself as a member of the Royal Canadian Mounted Police at Ground Zero shortly after the attack of 9/11. The publisher lost because they lacked of “responsible communication” in that they failed to present some facts such as the former police officer has a minimal training of rescuing while he was in the military force.
These two defenses may look very different; however, they share some elements. For example, they both consider reliability of source and urgency of the presented issue as important factors. Also, the American court system also requires some degree of responsible communication. For example, American court system rules negligence as “the failure to do something that reasonable persons in the course of ordinary human affairs would not fail to do (97).” It includes a normal range of actions to verify information.
I believe that the American approach of Actual Malice is more supported by UDH. To argue this, I think the philosopher Haiman is suitable. He claims that, “people are capable of free choice and are responsible for their own conduct and that the never-ending search for truth creates a need for a free market place of ideas (440).” According to Haiman, individuals should be “the best judges of their own interests”, and the law should be used to expand and enrich communications while maintaining the system open (440).” American defense of libel cases allows more freedom of expression based on their own interests instead of public interests. The different level of protection towards private figures and public figures may allow speakers to express their opinion about their interests while protecting each individual’s reputation.
In conclusion, there are different defenses to settle libel cases in America and Canada. American court focuses on actual malice including knowing the statement is false, and Canadian court focuses on responsible communication that whether the matter serves public interests and fairly reported. Although these two defenses have both differences and similarities, I believe that American defense is more tightly connected to UHD.