|
|
The tension between the right of freedom of expression and the right to protect human reputation through defamation and privacy laws is an ongoing discourse. Different societies have reached different balances as perhaps exemplified by the extremely strict common law libel regime in Australia as opposed to the preference for freedom of speech found in modern US Supreme Court interpretations of the First Amendment to the US Constitution. The relevance of defamation law as a component of the free speech debate has received considerable scholarly attention in recent years from legal experts including Michael Chesterman, Andrew Kenyon, Paul Mitchell, David Rolph, Lawrence McNamara, Dario Milo, Ian Cram, Roy Baker, Anthony Lewis, and Ian Loveland among others.
An unusual aspect of defamation law is that it is an essentially sociological tort. This argument was raised in a seminal article by Robert Post published in 1986 entitled “The Social Foundations of Defamation Law: Reputation and the Constitution.”5 More recently, Ian Cram has raised cultural and historical considerations for variations in the balance between freedom of expression and legal restrictions on speech in variations liberal democracies.6 Essentially, defamation is a sociological tort because it allows an individual to recover damages for injury to reputation in the eyes of others. However, not only is defamation a sociological tort but freedom of speech can also be described sociologically and thereby cultural or sociological factors can be used in balancing freedom of expression with other rights such as right to reputation. A sociological approach to freedom of speech offers an explanation for the differing levels of acceptance of traditional free speech theories in different societies. For example, Canada and the United States are democracies with popularly elected local, regional, and national governments, and the courts in both countries have recognised Professor Meiklejohn’s democracy-based free speech theory. Nevertheless, the United States rather clearly promotes freedom of speech concerning political matters to a greater degree than the equally democratic Canada. Does this reflect a flaw in Canada’s application of free speech theory? Professor Cram has suggested that it does not and instead reflects different Canadian cultural values.7 Accepting the role of local