Canadian Law of Defamation And The John Furlong Allegations
Headlines in Canada have been dominated recently by allegations published by the Georgia Straight newspaper in Vancouver against John Furlong, the former CEO of the Vancouver Olympics.
The allegations are serious. They claim Furlong physically abused First Nation students when he was a teacher in Burns Lake, B.C. in 1969. In response, Furlong issued a statement denying the allegations and stated he would be filing a defamation lawsuit against the Georgia Straight and Laura Robinson, the journalist who wrote the article. None of these allegations has been tested, much less proven, in court.
The case serves as a reminder of the degree to which the law of defamation (libel and slander) differs between the United States and Commonwealth nations such as the U.K. and Canada, particularly for public figures. Since the U.S. Supreme Court's 1964 decision in New York Times Co. v. Sullivan, a public figure in the United States must prove "actual malice" on the part of the publisher in order to sue for defamation. This higher standard of proof is not imposed on public figures under the libel laws of Canada or the U.K.
The public statements that have been issued thus far by Furlong and the Georgia Straight foreshadow some of the issues that may be raised in any lawsuit which may follow.
Furlong has categorically denied the allegations. He stated, "I categorically deny absolutely any wrongdoing...it JUST did not happen."
The Georgia Straight apparently stands by its story. In defamation cases, truth is a powerful but risky defence. If a defendant can prove the statements were true, he or she can escape liability because, as a general rule, the law favours truth over reputation.
However, a defendant who maintains the truth of his or her statements in court and fails to prove that they were true can expect to be punished with an award of aggravated damages for doing so. The question of whether to plead truth as a defence can be a difficult judgment call for a defence attorney.
Furlong also stated that it "feels very much like a personal vendetta" against him. Generally, these words suggest a malicious intent, and in Canadian law if the defendant is found to have acted with malice then almost all other defences are removed. This key phrase from Furlong's press statement may foreshadow another issue to be battled out in any subsequent litigation.
If sued, the Georgia Straight and Robinson might also rely on a recently recognized defence in Canada, termed the "responsible communication on matter of public interest" defence or "responsible journalism" defence. This is a defence that protects those, such as journalists, who write on matters of public interest even if they get some facts wrong, provided that they took reasonable steps in the circumstances to ensure that the story was fair and accurate.
In this case, Robinson states in her article that eight former students of Furlong's signed affidavits for the Georgia Straight making allegations of abuse.
Journalists are also expected to contact the person in question to get his or her side of the story. In this case, whether or not Furlong was given sufficient opportunity to respond already appears to be a contested question. Robinson claims that she tried to reach Furlong through his lawyer and others. Furlong states that he wrote numerous written cautions to Robinson and was disappointed by her "shocking lack of diligence in researching the article." He also claims that the Georgia Straight newspaper didn't place a single call to him to validate the element of the story.
The Georgia Straight has issued a statement in response to Furlong defending its position and reiterating the number of sources that support the claims. All of which suggests that this may be one of the most high-profile and important defamation cases to watch in the months ahead.
This article was originally published in The Huffington Post BC on October 1, 2012.