The "Deception Exception": A New Approach to Section 2(b) Values and Its Impact on Defamation LawJeremy Streeter
ABSTRACT
This article argues that the tort of defamation is inconsistent with Charter values because it fails to adequately take into account the guarantee of freedom of expression. Although defamation law does protect the reputations and privacy interests of individuals, these values must be weighed against the values that underlie the s. 2(b) guarantee. This article revisits s. 2(b), and argues that the values normally associated with freedom of expression - namely the quest for truth, the promotion of individual self-development, and participation in the community - are inadequate, as they are not content-neutral. The article argues that the true values behind s. 2(b) are content-neutrality and sincerity. Using these new values, a new approach to freedom of expression is suggested, one which protects all expression equally and requires all infringements of sincere expression to be justified through a strict s. 1 analysis.
The new values behind freedom of expression are then applied in the context of defamation law. The tort of defamation, as presently constituted, is found to be inconsistent with these new values. The article concludes that a defence of reasonableness or due diligence would strike a better balance, protecting reputations and privacy while respecting the true values behind the s. 2(b) guarantee.
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Citation: (2003) 61(1) U.T. Fac. L. Rev. 79.
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