Canada and the United States are the closest of allies – the Laverne and Shirley of geo-political friendships. But despite the congenial relationship (and the fact that a US defamation ruling is usually recognized in Canada), if a Canadian person or company wins a defamation lawsuit against an American citizen or US-based company, in a Canadian court, the ruling may not be recognized by an American court. Why? It all has to do with the First Amendment, actual malice and a U.S. bill that was passed in 2010 called the Speech Act.
A Quick Primer on United States Defamation Law
U.S. defamation law is considered to be the most defendant-friendly in the English-speaking world. Due to the First Amendment and mountains of case law, opinion is not considered defamatory in the United States.
Moreover, in the United States, if the plaintiff is a public figure, then the standard of actual malice must be met – meaning the plaintiff must prove that the defendant knowingly spoke or published material he or she knew to be false, or distributed the material with reckless disregard for the truth.
A Quick Primer on Canadian Defamation Law
The opposite of the U.S., Canada is considered to have the most plaintiff-friendly libel and slander laws. Provincial defamation law in French-influenced Quebec are similar to United States statutes, but the rest of the provinces base their defamation laws on English Common Law.
Traditionally, from a plaintiff’s perspective, common law defamation statutes are more lenient than U.S. defamation statutes. For example, those bringing a slander or libel suit in a Canadian court do not have to prove actual malice. Furthermore, under Canadian statutes, opinion is often considered defamatory since any material which “lowers the esteem of the subject” can be ruled defamatory.
The SPEECH Act: US Citizens Don’t Have To Pay Canadian Defamation Damages
Verbosely named the Securing the Protection of our Enduring and Established Constitutional Heritage Act, the bill basically renders foreign defamation judgments against U.S. entities, which are handed down in jurisdictions with incompatible First Amendment protections, unenforceable in the United States.
So, for example, if you’re an American, who resides in the States, and you’re found liable in a Canadian court for defamation, in most cases, you don’t have to pay any pecuniary penalties.
If you’re interested in reading more about other defamation laws from around the world, check out the Kelly / Warner International Defamation Law Database. If you want to speak with an attorney well-versed in the SPEECH Act, get in touch today.