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April 3, 2012

Do we have unlimited freedom of expression in Canada?

There are limits, and lots of them!

by Steven Z. Raber

Canadians are justifiably proud of their enshrined-in-the-constitution rights of freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. These rights are set out in s. 2 of the Canadian Charter of Rights and Freedoms, which became law with the proclamation into force of the Constitution Act, 1982, an act of Parliament.

What some Canadians seem to forget is that there are limits on our freedoms of expression. Some publications can result in civil action being taken against those publishing their thoughts and beliefs, while others carry criminal sanctions.

The law of copyright is unaffected by the Charter. The Copyright Act, another federal statute, reserves to the owner of a work the exclusive right to make copies of it or to allow others to do so, subject to certain exceptions. Further, the author of a work has “moral rights” in it, being the right to be identified as the author (or by a pseudonym or to be anonymous) and the right to maintain the integrity of the work. If one infringes on these rights, civil litigation may follow.

Under Canada’s Criminal Code, anyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace or who communicates statements, other than in private conversation, that wilfully promote hatred against any identifiable group, may be guilty of an indictable offence and be liable to imprisonment for up to two years.

Similarly, under the federal Competition Act, false advertising is prohibited. Sub-section 52 (1) provides that:
"No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect ."

The penalties can be severe: A person who contravenes subsection 52 (1) is guilty of an offence and liable on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both.

In Manitoba, folks may rely on the provisions of The Defamation Act to protect their reputations from verbal smears (slander) or written ones (libel). Similar laws apply in other provinces.

With the advent of the Internet, it’s never been easier to publish one’s thoughts, beliefs, and opinions. Some of those publications inevitably cross the line and we have seen what appears to be an explosion of defamation cases across the country. These cases seem to fall into two general categories. In the first, there are postings under the author’s names. In the second, the authors use pseudonyms or noms de plume in an effort to obscure their identities.

When the real name of the author is known, as lawyers being consulted by those who feel their reputations have been tarnished, we need only respond to the issue of whether the publication complained about was, in fact, defamatory. These cases have gone so far as the Supreme Court of Canada, which recently held that attaching a link to a site with defamatory information on it, without otherwise adopting the contents of that site, is itself not an act of defamation.

Where pen names have been employed, the courts have made orders requiring Internet service providers to provide identifying information relating to the authors, rendering the use of pseudonyms relatively useless.

So, while Canadians enjoy the benefits of freedom of expression, we must exercise caution to make certain we do not run afoul on their limits. Exceeding those limits can result in litigation or, even worse, incarceration.

STEVEN Z. RABER, LL.B., F.I.P.I.C., is a lawyer, registered trademark agent, and trained mediator, and may be reached by direct telephone at (204) 957-8304, by direct facsimile at (204) 954-0304, or by email at