What is the standard of liability for a publisher or broadcaster of defamatory material?

British Columbia, Canada

The following excerpt is from Pressler v. Lethbridge, 1997 CanLII 2131 (BC SC):

The United States of America Supreme Court in Gertz v. Welch, 41 Ed 2d 789 (1974) held, at p.809: We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. ...

In that case, a private plaintiff was defamed by a media defendant. The court restricted the application of New York Times v. Sullivan, supra and held that the rule formulated in that case did not apply to private individuals involved in a matter of public interest. The court did find for the defendants on the matter of damages in holding that presumed or punitive damages could no longer be awarded against a media defendant without proof of falsity or reckless disregard for the truth. The defendants propose that this court should similarly amend the law of defamation in Canada, to place the burden on the plaintiffs to prove, at a minimum, negligence on the part of media defendants. They propose that as against media defendants defamation actions should not be supportable without a finding of fault. Otherwise, media defendants will be unduly stifled as defamatory statements made by them will be presumed to be false and freedom of speech will be impaired. The defendants characterize the "liability without fault" aspect of our defamation law as a "major flaw" and argue that the tort concept of negligence must be imported into our defamation law to remedy this.

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