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108.      British Columbia residents do not deserve an apartheid-
style censorship law.  Even when the Catholic Church forced
Galileo to recant his blasphemous statement that the earth
revolved around the sun,  the Church  at least claimed that it
was censoring a falsehood in the public interest of saving
people's eternal souls.  When the brutal Soviet regime extracted
confessions from dissidents at show trials, the Soviets at least
pretended that the court proceedings were intended to unmask the
truth about "wreckers" and "anti-Soviet traitors".

(C)  Fair Comment On True Facts Is Not A Defence

109.      The offence of wilful promotion of hatred of
identifiable groups under section 319 (2) of the Criminal Code is
subject to a form of fair comment defence in respect to opinions
on a religious subject.  Section 319(2) provides:  "Every one
who, by communicating statements, other than in a private
conversation, wilfully promotes hatred against any identifiable
group is guilty of (a) an indictable offence and is liable to
imprisonment for a term not exceeding two years; or (b) an
offence punishable on summary conviction."  Section 319(3)
provides: "(3) No person shall be convicted of an offence under
subsection (2)_ (b) if, in good faith, he expressed or attempted
to establish by argument an opinion on a religious subject;"

110.      The Criminal Code offence of "defamatory libel" of
individuals is also subject to a defence of fair comment.
Section 298. (1) defines "defamatory libel" to mean "matter
published, without lawful justification or excuse, that is likely
to injure the reputation of any person by exposing him to hatred,
contempt or ridicule, or that is designed to insult the person of
or concerning whom it is published." [emphasis added].   Section
310 provides:  "No person shall be deemed to publish a defamatory
libel by reason only that he publishes fair comments (a) on the
public conduct of a person who takes part in public affairs; or
(b) on a published book or other literary production, or on any
composition or work of art or performance publicly exhibited, or
on any other communication made to the public on any subject, if
the comments are confined to criticism thereof."

111.      Section 307 of the Criminal Code also protects fair
comment on proceedings of the Senate of House of Commons or the
legislature of a province, or a committee thereof, or of the
public proceedings before a court exercising judicial authority.

112.      Similarly, in a civil defamation lawsuit in the common
law provinces and territories, it is "a complete defence to an
action for defamation that the words complained of are `fair
comment made in good faith and without malice on a matter of
public interest'": Carter-Ruck on Libel and Slander, at 105.
Often called the cornerstone of free speech, fair comment has
often been characterized as the most valuable defence to a civil
defamation lawsuit because it is often the only available defence
in cases involving the expression of opinions.  To succeed on
this defence, the defendant must prove that the defamatory matter
is comment on true facts, expressed or implied in the defamatory
publication or broadcast, on a subject of public interest.  The
defence fails if the ordinary reader or listener would regard the
defamatory matter as fact rather than comment, or if the comment
was actuated by malice.  In a news story, every known background
fact need not be published but enough facts must be published to
demonstrate a basis for the comment.  The plaintiff has the
burden of proving malice to defeat this defence:  Law Reform
Commission of British Columbia, Report on Defamation (October
1985), LRC 83, at page 45.

113.      The comment need not be fair, in the sense of being
reasonable by objective standards, as long as it was made
honestly and without improper motives. The Law Reform Commission
of British Columbia's Report on Defamation  states at page 46:
          
          The use of the word "fair" in the name of the
          defence is a frequent source of confusion.  There
          is no requirement that the comment be fair in the
          sense that it is a comment that a reasonable
          person would make on the facts.  The critic may
          have peculiar and very prejudiced views on the
          matter, but he is not deprived of the protection
          of the defence.  The question for the jury is not
          whether the comment was one that they would have
          made or that the hypothetical, reasonable,
          informed critic would have made.  Such a rule
          would come perilously close to confining the
          defence to critics who express the majority
          opinion.  The generally accepted view is that "as
          long as the comment is not actuated by malice and
          represents a legitimate opinion honestly held by
          the speaker, it will be protected."  One way of
          applying this rule is to ask the jury to decide
          whether the comment is one which could have been
          made on the matter in issue by "any honest man,
          however prejudiced he might be, or however,
          exaggerated or obstinate his views?"

114.      The Press Council respectfully submits that a group
defamation law which does not recognize a defence of fair comment
cannot be regarded as reasonable or as demonstrably justified in
a free and democratic society. In this regard, the British
Columbia Human Rights Code censorship clause mirrors the failure
of apartheid South Africa to provide a fair comment exemption
from the censorship provisions of its  Publications Act

115.      With the exception of Manitoba, every other human
rights statute of the Canadian provinces and territories which
contains a prohibition against "discriminatory publications" also
contains an exemption for the expression of opinion.  Manitoba's
statute does not apply to newspapers.  Accordingly, British
Columbia is the only Canadian province with a "group defamation"
prohibition that does not contain an exemption for the expression
of opinion in the news media.

(D)  Publication In The Public Interest And For The Public
Benefit Is Not A Defence;

116.      The Criminal Code recognizes a form of public interest
privilege defence to a charge of wilful promotion of hatred of
identifiable groups under section 319 (2) of the Criminal Code,
which provides:  "Every one who, by communicating statements,
other than in a private conversation, wilfully promotes hatred
against any identifiable group is guilty of (a) an indictable
offence and is liable to imprisonment for a term not exceeding
two years; or (b) an offence punishable on summary conviction."
Section 319(3) provides: "(3) No person shall be convicted of an
offence under subsection (2)(c) if the statements were relevant
to any subject of public interest, the discussion of which was
for the public benefit, and if on reasonable grounds he believed
them to be true."

117.      Similarly, the Criminal Code offence of "defamatory
libel" of individuals is subject to a defence of public interest
privilege.  Section 298. (1) defines "defamatory libel" to mean
"matter published, without lawful justification or excuse, that
is likely to injure the reputation of any person by exposing him
to hatred, contempt or ridicule, or that is designed to insult
the person of or concerning whom it is published." [emphasis
added]. Section 309 provides: "No person shall be deemed to
publish a defamatory libel by reason only that he publishes
defamatory matter that, on reasonable grounds, he believes is
true, and that is relevant to any subject of public interest, the
public discussion of which is for the public benefit."

118.      The Criminal Code offence of "defamatory libel" is
subject to certain other privilege defences.  Section 311
provides:  "No person shall be deemed to publish a defamatory
libel where he proves that the publication of the defamatory
matter in the manner in which it was published was for the public
benefit at the time when it was published and that the matter
itself was true."  Section 305 protects the publication of
defamatory matter "in a proceeding held before or under the
authority of a court exercising judicial authority" or "in an
inquiry made under the authority of an Act or by order of Her
Majesty, or under the authority of a public department or a
department of the government of a province."  Section 306
protects publication "to the Senate or House of Commons or to a
legislature of a province of defamatory matter contained in a
petition to the Senate or House of Commons or to the legislature
of a province" or publications of extracts or abstracts of such a
petition.  Section 307 protects a fair report published "in good
faith, for the information of the public_of the proceedings of
the Senate or House of Commons or the legislature of a province,
or a committee thereof, or of the public proceedings before a
court exercising judicial authority".  Section 308 protects a
fair report, in good faith, of the proceedings of "any public
meeting if  (a) the meeting is lawfully convened for a lawful
purpose and is open to the public; (b) the report is fair and
accurate; c he does not refuse to publish in a conspicuous place
in the newspaper a reasonable explanation or contradiction by the
person defamed in respect of the defamatory matter."

119.      Section 312 of the Criminal Code also protects
defamatory matter published "on the invitation or challenge of
the person in respect of whom it is published" or "that it is
necessary to publish in order to refute defamatory matter
published in respect of him by another person", if he believes
the defamatory matter is true and relevant.

120.      Section 313 protects certain defamatory matter
published in answer to inquiries.  Section 315 protects certain
information given to another person for the purpose of giving
information to that other person with respect to a subject matter
in which the person to whom the information is given has an
interest in knowing the truth.  Section 315 protects a defamatory
publication made in good faith for the purpose of seeking a
remedy or redress for a private or public wrong.

121.      Several forms of a public interest defence are found in
Australia's Discrimination Act, 1991 which in section 66
provides: "66.(1)  It is unlawful for a person, by a public act,
to incite hatred towards, serious contempt for, or severe
ridicule of, a person or group of persons on the ground of the
race of the person or members of the group."  Section 66(2)
provides: "(2) Nothing in this section renders unlawful - (a)  a
fair report of a public act referred to in subsection (1); _(c) a
public act, done reasonably and in good faith, for academic,
artistic, scientific or research purposes or for other purposes
in the public interest, including discussion or debate about and
expositions of any act or matter."

122.      Similarly, in a civil defamation lawsuit in the common
law provinces and territories, a defendant will not be liable to
the plaintiff for a defamatory statement if it was made without
malice on an occasion of qualified privilege.  This defence is
explained in Carter-Ruck on Libel and Slander at 130-131:
          
          Like absolute privilege qualified privilege exists
          not for the purpose of licensing the defamer but
          for `the common convenience and welfare of
          society'.  There are occasions when persons should
          be at liberty to express themselves freely even if
          in doing so a third person is defamed.  Social and
          commercial life would become intolerable if no one
          were ever protected in making a statement
          reflecting upon another unless he could prove that
          statement to be true_
          
          Unlike absolute privilege it is impossible to
          catalogue fully the occasions of qualified
          privilege.  Generally speaking an occasion of
          qualified privilege arises when the common
          convenience and welfare of society demands that
          the statements made upon such occasion should be
          protected. it is the occasion which is privileged
          and therefore the communication is protected.
          When an attempt is made to enlarge upon this very
          broad statement difficulties arise.  In order to
          explain the principle it is necessary to classify
          the occasions of qualified privilege under
          different heads but it should be remembered that
          these are not exhaustive.
          
          The occasions of qualified privilege may be
          classified as follows:
          
          (1)  Statements made in the performance of a legal, moral or
            social duty.
          
          (2)  Statements made in the protection or furtherance of an
            interest (a) private _(b) public;
          
          3)   Statements made in the protection of a common interest;
          
          4)   Statements made in certain classes of reports: (a) reports
            of Parliamentary proceedings; (b) reports of judicial
            proceedings_

123.      In each of these classes of statements no civil action
for defamation will succeed unless the plaintiff can prove that
in publishing the words complained of the defendant was actuated
by express malice.

124.      The malice which defeats a qualified privilege defence
to a civil defamation lawsuit is not limited to spite, but
includes any indirect motive or ulterior purpose that conflicts
with the sense of duty or the mutual interest created by the
occasion.  Malice may also be established by showing that the
plaintiff spoke dishonestly, or in knowing or reckless disregard
for the truth.  The privilege is defeated, however, when the
limits of the duty or interest have been exceeded:  Carter-Ruck
on Libel and Slander at 145-150.

125.      The Press Council respectfully submits that a group
defamation law which does not recognize a defence of qualified
privilege cannot be regarded a reasonable or as demonstrably
justified in a free and democratic society. In this regard, the
British Columbia Human Rights Code censorship section mirrors the
failure of apartheid South Africa to provide a qualified
privilege exemption from the censorship provisions of its
Publications Act

(E)  Genuine Artistic, Academic, Scientific Or Research Purpose
Is Not A Defence

126.      British Columbia's censorship law in section 7(1) of
the Human Rights Code is so broad that it will apply to works of
art including paintings, photographs, theatre, film, and musical
lyrics.  Even people who merely sell or display (without
endorsing) the politically unpopular expression of others can be
found guilty of violating this censorship law.  This means that
libraries bookstores, news-stands, theatres, movie houses, and
even local theatre companies are potential targets of complaints.

127.      Australia's Discrimination Act, 1991 creates a special
meritorious purposes defence to a charge of group defamation
under that racial vilification statute:  Section 66 provides:
"66.(1) It is unlawful for a person, by a public act, to incite
hatred towards, serious contempt for, or severe ridicule of, a
person or group of persons on the ground of the race of the
person or members of the group."  The special defence is created
by section 66 (2) which states: "(2)  nothing in this section
renders unlawful - (c)  a public act, done reasonably and in good
faith, for academic, artistic, scientific or research purposes or
for other purposes in the public interest, including discussion
or debate about and expositions of any act or matter."

128.      A somewhat analogous defence is recognized in the
Canadian Criminal Code with respect to the offence of defamatory
libel against an individual.  Section 310 of the Criminal Code
provides that "No person shall be deemed to publish a defamatory
libel by reason only that he publishes fair comments_(b) on a
published book or other literary production, or on any
composition or work of art or performance publicly exhibit,_if
the comments are confined to criticism thereof. "

129.      A somewhat more ambiguous defence is found in the
United Kingdom Public Order Act, 1986, which establishes certain
defences where racially inflammatory material is published in
plays, recordings, or broadcasts.  In each case, it is a defence
for the accused to prove that "he did not know and had no reason
to suspect that the offending words or behaviour were
threatening, abusive or insulting" or "that the circumstances
[were such] that racial hatred would be likely to be stirred
up.":  section 20 (1)(b),(c); section 21(3); section 22(4)(b),
22(5)(b), 22(6).

130.      The Press Council respectfully submits that a group
defamation law which does not recognize a defence of privilege
for group defamation having a genuine artistic, academic,
scientific or research purpose cannot be regarded a reasonable or
as demonstrably justified in a free and democratic society. In
this regard, the British Columbia Human Rights Code censorship
section mirrors the failure of apartheid South Africa to provide
such an exemption from the censorship provisions of its
Publications Act.

131.      See also the discussion above of activist artistic
expression in A. Adler, "What's Left?  Hate Speech, Pornography,
and the Problem for Artistic Expression", [1996] 84 California
L.R. 1499.

132.      Failure to provide an exemption for artistic works
threatens true artistic expression. The great works of art are
not the product of committees or "collective" genius and unless
they were commissioned by Soviet or Maoist regimes, usually focus
on individuality as opposed to collective personalities.  With
rare exception, individuals have written the great novels, poems,
symphonies, sculptures, paintings, plays, and movies.
Individuality brings the artistic sparkle to symphony orchestras,
ballet companies, and theatre groups.  The muse moves
individuals; not groups.  Emphasizing collective values over
individual values is contrary to the artistic impulse.
Collective works are perhaps useful state propaganda but they
deny the individuality which is the key to human expression.  Art
thrives above ground only in a free society.  In a totalitarian
society, it dies or seeks to survive in surreptitious forms such
as samizdat, word-of-mouth poetry, or "writing between the
lines".

(F)  Opinion Expressed In Good Faith On A Religious Subject Is
Not A Defence

133.      The Canadian Criminal Code provides an express
exemption from the group defamation defence defined in section
319(2) for opinion on a religious subject.  Section 319(3)
provides:  "No person shall be convicted of an offence under
subsection (2)..(b) if, in good faith, he expressed or attempted
to establish by argument an opinion on a religious subject.

134.      The Criminal Code recognizes an analogous defence to
the offence of "blasphemous libel" prescribed by section 296 of
the Criminal Code.  Section 296(3) provides;  "No person shall be
convicted of an offence under this section for expressing in good
faith and in decent language, or attempting to establish by
argument used in good faith and conveyed in decent language, an
opinion upon a religious subject."

135.      The Press Council respectfully submits that a group
defamation law which does not recognize a defence for opinion on
religious issues cannot be regarded a reasonable or as
demonstrably justified in a free and democratic society. In this
regard, the British Columbia Human Rights Code censorship section
mirrors the failure of apartheid South Africa to provide such an
exemption from the censorship provisions of its Publications Act

(G)  Expression In Good Faith, Pointing Out For The Purpose Or
     Removal, Matters Producing Or Tending To Produce Feelings Of
     Hatred Is Not A Defence

136.      The need for such a defence is admirably explored in A.
Adler, "What's Left?  Hate Speech, Pornography, and the Problem
for Artistic Expression", [1996] 84 California L.R. 1499.

137.      The Criminal Code recognizes this form of  defence to a
charge of wilful promotion of hatred of identifiable groups under
section 319 (2) of the Criminal Code, which provides:  "Every one
who, by communicating statements, other than in a private
conversation, wilfully promotes hatred against any identifiable
group is guilty of (a) an indictable offence and is liable to
imprisonment for a term not exceeding two years; or (b) an
offence punishable on summary conviction."  Section 319(3)
provides: "(3) No person shall be convicted of an offence under
subsection (2).. (d) if, in good faith, he intended to point out,
for the purpose of removal, matters producing or tending to
produce feelings of hatred toward an identifiable group in
Canada.

138.      The Press Council respectfully submits that a group
defamation law which does not recognize such an exemption cannot
be regarded a reasonable or as demonstrably justified in a free
and democratic society. In this regard, the British Columbia
Human Rights Code censorship section mirrors the failure of
apartheid South Africa to provide such an exemption from the
censorship provisions of its  Publications Act.

(H)  Innocent Dissemination Is Not A Defence:

139.      The Canadian Criminal Code offence of "defamatory
libel" of individuals is subject to a defence of innocent
dissemination  Section 298. (1) defines "defamatory libel" to
mean "matter published, without lawful justification or excuse,
that is likely to injure the reputation of any person by exposing
him to hatred, contempt or ridicule, or that is designed to
insult the person of or concerning whom it is published."
[emphasis added].  Section 303 establishes an innocent
dissemination defence for the proprietors and vendors of
newspapers in the following terms:  "The proprietor of a
newspaper shall be deemed to publish defamatory matter that is
inserted and published therein, unless he proves that the
defamatory matter was inserted in the newspaper without his
knowledge and without negligence on his part.  Section 303(1)
states:  " No person shall be deemed to publish a defamatory
libel by reason only that he sells a number or part of a
newspaper that contains defamatory libel, unless he knows that
the number or part contains defamatory matter or that defamatory
matter is habitually contained in the newspaper "

140.      Section 304 establishes an innocent dissemination
defence for vendors of books, magazines and pamphlets.   "No
person shall be deemed to publish a defamatory libel by reason
only that he sells a book, magazine, pamphlet or other thing,
other than a newspaper that contains defamatory matter if, at the
time of the sale, he does not know that it contains defamatory
matter."

141.      Similarly, the United Kingdom Public Order Act 1986
recognizes an innocent dissemination defence to the offence of
publishing or displaying written material described in section 19
in the following terms:  "19(1)  A person who publishes or
distributes written material which is threatening, abusive or
insulting is guilty of an offence if  .(a)  he intends thereby to
stir up racial hatred, or (b)  having regard to all the
circumstances racial hatred is likely to be stirred up thereby
The defence of innocent dissemination is found in section 19(2)
which states:  (2)  In proceedings for an offence under this
section it is a defence for an accused who is not shown to have
intended to stir up racial hatred to prove that he was not aware
of the content of the material and did not suspect, and had no
reason to suspect, that it was threatening, abusive or
insulting."

142.      The United Kingdom Public Order Act, 1986 recognizes a
similar innocent dissemination defence for distributing, showing
or playing a recording: section 21; broadcasting or including a
programme in a cable programme service: section 22; and
possession of racially inflammatory material: section 23.

143.      In a civil defamation context, the United Kingdom
Defamation Act, 1996, which came into force on July 4, 1996,
creates form of innocent dissemination defence.  The Act provides
that a person who is not the "author, editor or publisher" of a
defamatory statement has a defence if he "took reasonable care in
relation to its publication, and he did not know, and had no
reason to believe, that what he did caused or contributed to the
publication of a defamatory statement." [section 1.(1)]   The Act
also provides that "_a person shall not be considered the author,
editor or publisher of a statement if he is only involved (a) in
printing, producing, distributing or selling printed material
containing the statement; (b) in processing, making copies of,
distributing, exhibiting, or selling a film or sound
recording_containing the statement; (c) in processing, making
copies of, distributing or selling any electronic medium in or on
which the statement is recorded, or operating or providing any
equipment, system or service by means of which the statement is
retrieved, copied, distributed or made available in electronic
form; (d) as the broadcaster of a live program containing the
statement in circumstances in which he has no effective control
over the maker of the statement; (e) as the operator of or
provider of access to a communication system by means of which
the statement is transmitted or made available, by a person over
whom he has no effective control."  [section 1(3)].

144.      In Ontario, a court recently dismissed a civil libel
action against the University of Toronto Press which had printed
and bound a book alleged to be libelous.  U of T press did not
read the manuscript, had no editing function, and was not aware
of the allegedly libelous statements.  It delivered them to the
author and played no role in distribution.  The Court held that U
of T Press did not "publish" the book and therefore could not be
held liable.  Alternatively, U of T Press met the requirements of
the common law defence of innocent dissemination:  Menean v
Miguna [1996] 30 O.R. (3d) 602.  In his reasons, the trial judge
stated:  "Printers should not be held liable for defamation
simply virtue of being the printer.  In light of the changing
technology in the printing process, it would be unreasonable to
hold a printer liable on the facts of this case."  Applying
Vizetelly v Mudie's Select Library Limited, [1900] 2 Q.B. 170
(C.A.), the Ontario Court held that it was a defence to show that
the work was disseminated in the ordinary course of business;
that the defendant was innocent of any knowledge of the libel
contained in the work disseminated by him; that there was nothing
in the work or the circumstances under which it came to him or
was disseminated by him which ought to have lead him to suppose
that it contained a libel; and that, when the work was
disseminated by him, it was not by any negligence on his part
that he did not know that it contained the libel.  The burden of
proof to establish these ingredients of the defence rests on the
defendant.  The Court noted that in earlier times printers
necessarily had contact with the subject material.  U of T Press
successfully argued that modern printing methods do not require
printers to read the material or to check its content in any way
prior to printing.

145.      The Press Council respectfully submits that a group
defamation law which does not recognize such an exemption cannot
be regarded a reasonable or as demonstrably justified in a free
and democratic society. In this regard, the British Columbia
Human Rights Code censorship section mirrors the failure of
apartheid South Africa to provide such an exemption from the
censorship provisions of its Publications Act.

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