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Published online by Cambridge University Press: 25 November 2020
The use of defamation law to protect corporate reputation is controversial. Australia, Canada and England and Wales have been at the centre of this debate, as although their defamation laws share many common characteristics, they adopt distinct approaches to allowing companies to sue in defamation. Consequently, in all three jurisdictions defamation law remains a cause of action that is relied upon by companies to protect their reputations. The primary concern of this paper is the efficacy of these approaches,1 particularly in light of the reforms made to Australia's defamation laws, adopted in 2020, that further restrict the right of corporations to sue in defamation. Ultimately, it argues that the Australian and English and Welsh approaches disproportionately disadvantage companies, particularly small ones, whereas the Canadian approach overprotects corporate reputation. It concludes by offering an alternative way forward that, although not perfect, provides a better balance between the interests.
*All websites accessed 11 November 2020. I am grateful to the anonymous reviewers for their valuable feedback. The usual disclaimer applies.
In doing so, it builds on my earlier work in this area. See P Coe ‘A comparative analysis of the treatment of corporate reputation in Australia and the UK’ in P Wragg and A Koltay (eds) Research Handbook on Comparative Privacy & Defamation Law (Edward Elgar Publishing, 2020) p 253.
2 Because s 17(2) of the Defamation Act 2013 makes it clear that the Act only applies to a very limited extent to Scotland this paper focuses on the law as it applies in England and Wales. However, because some provisions extend to Scotland (see s 17(3)), the 2013 Act is a ‘United Kingdom Act’ and is referred to as such.
3 Section 3, Schedule 1, Clause 5.
4 Material that is read, heard, or seen outside NSW.
5 Please note that that the relevant Act and provisions in the Australian Capital Territory and Northern Territory are Civil Law (Wrongs) Act 2002, s 121 and Defamation Act 2006, s 8 respectively. In all other states and territories, the relevant provision and Act is s 9 Defamation Act 2005 (NSW, Queensland (Qld), Victoria (Vic), South Australia (SA), Tasmania (Tas)).
6 See Civil Law (Wrongs) Act 2002, s 121(2); Defamation Act 2006, s 8(2); Defamation Act 2005, s 9(2). The scope of these exceptions is explored in greater detail below.
7 NSW Government ‘Statutory review Defamation Act 2005’ (June 2018).
8 Ibid, [2.10] and Recommendation 2.
9 See section 5.
10 NSW Government, above n 7, [2.4].
11 Ibid, [2.7].
12 All Australian jurisdictions approved the proposed amendments to the Model Defamation Provisions at the July 2020 meeting of the Council of Attorneys-General, where it was ‘agreed that all jurisdictions will enact and commence the amendments as soon as possible.’ See Council of Attorneys-General Communiqué 27 July 2020 https://www.ag.gov.au/sites/default/files/2020-07/Council%20of%20Attorneys-General%20communiqué%20–%20July%202020.pdf.
13 For example, see Council of Attorneys-General, Model Defamation Amendment Provisions 2020 Report of the Australasian Parliamentary Council's Committee, 12 November 2019, PCC-541 d15, https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/consultation-draft-of-mdaps.pdf.
14 Model Defamation Amendment Provisions 2020, section 10A(2): PCC-541 d30 (approved by the Council of Attorneys-General, 27 July 2020) (MDAP) https://pcc.gov.au/uniform/2020/Model_Defamation_Amendment_Provisions_2020.pdf.
15 See generally Young, H ‘Rethinking Canadian defamation law as applied to corporate plaintiffs’ (2013) 46(2) University of British Colombia Law Review 529Google Scholar.
16 See section 2 below.
17 SCAG Working Group of State and Territory Officers ‘Proposal for Uniform Defamation Laws’ (July 2004).
18 Ibid, pp 14–15.
19 For example, the law of injurious (malicious) falsehood.
20 Rolph, D ‘Corporations’ right to sue for defamation: an Australian perspective’ (2011) 22(7) Entertainment Law Review 195 at 196Google Scholar; Collins, M ‘Protecting corporate reputations in the era of uniform national defamation laws’ (2008) 13 Media & Arts Law Review 447 at 456–467Google Scholar.
21 Mullis, A and Scott, A ‘The swing of the pendulum: reputation, expression and the re-centring of English libel law’ (2012) 63(1) Northern Ireland Legal Quarterly 27 at 54Google Scholar.
22 Libel Reform Campaign Free Speech is Not for Sale (2009) p 6 www.libelreform.org/the-report?start=5.
23 MoJ Draft Defamation Bill: Summary of Responses to Consultation (CP(R)3/11, 2011).
24 Ibid, at [138]–[145].
25 See also House of Commons Culture, Media and Sport Committee ‘Press Standards, Privacy and Libel’ Second Report of Session 2009–10, Vol 1, [177] and [178].
26 MoJ, above n 23, at [15].
27 Joint Committee on the Draft Defamation Bill ‘Oral and associated written evidence’ Vol II (2010–12, HL 203, HC 930-II) 18–19 (Lord Lester), 381–386 (Lord McNally).
28 Young, above n 15. The Canadian Supreme Court has also recognised that defamation law can be used by corporations to ‘chill’ speech. See Grant v Torstar Corpn 2009 SCC 61, [2009] 3 SCR 640, at [53]; Crookes v Newton 2011 SCC 47, [2011] 3 SCR 269, at [36].
29 From the UK see P Coe ‘The Defamation Act 2013: we need to talk about corporate reputation’ (2015) Journal of Business Law 313 at 319–320; Oster, J ‘The criticism of trading corporations and their right to sue for defamation’ (2011) 2 Journal of European Tort Law 255CrossRefGoogle Scholar; cf Acheson, D ‘Corporate reputation under the European Convention on Human Rights’ (2018) 10(1) Journal of Media Law 49CrossRefGoogle Scholar. From Australia see Rolph, above n 20; Collins, above n 20. From Canada see Young, above n 15; Young, H ‘The Canadian defamation action: an empirical study’ (2017) 95 The Canadian Bar Review 591Google Scholar.
30 See generally Australian Government Attorney-General's Department (AGD) ‘Revised outline of a possible national defamation law’ July 2004.
31 H Morgan ‘Attack on integrity lacks moral standing’ (The Australian Financial Review, 5 April 2005) p 63.
32 For example, see NSW Government, above n 7, at [2.4].
33 Amazon was founded by Jeff Bezos in 1994. At the time of writing Amazon was worth $1 trillion, with Bezos’ net worth being $171.6 billion: B Hoyle ‘Bezos breaks his own wealth record’ (The Times, 4 July 2020) p 14. By way of further example of the influence of large companies in the UK generally, in 2010 the Conservative and Liberal Democrat coalition government announced the creation of a Business Advisory Group, consisting of industry leaders, to assist the Prime Minister and senior ministers with ‘high level’ business and economic advice. The group operated until 2016: https://www.gov.uk/government/news/business-advisory-group-announced. In 2017 the UK government set up a similar group to advise on Brexit: https://www.ft.com/content/67001056-5b39-11e7-9bc8-8055f264aa8b. And, in 2020, Liz Truss, the International Trade Secretary, launched eleven trade advisory groups, from a variety of industries, to provide advice ‘that will be used to help inform the government's negotiating position’ during trade talks with other countries: https://www.gov.uk/government/news/liz-truss-brings-key-industries-closer-to-trade-negotiations.
34 [2007] 1 AC 359, at [158]. Similarly, in the United States, Justice Scalia has stated that corporations are the ‘principal agents of the modern economy’: see Citizens United v Federal Election Commission 558 US 310 (2010) 929.
35 The UK's Federation of Small Businesses (FSB) states that: ‘Small businesses and the self-employed are at the heart of our communities. This is evident in their willingness and ability to employ those furthest from the labour market, their support for local schools and colleges, and their volunteering activities on local issues’: https://www.fsb.org.uk/.
36 Young, above n 15, at 555.
37 Desai, DR ‘Speech, citizenry, and the market: a corporate public figure doctrine’ (2013) 98 Minnesota Law Review 455 at 462–466Google Scholar.
38 R v Guingard 2002 SCC 14, [2002] 1 SCR 472, at [23].
39 Irwin Toy Ltd v Quebec (AG) [1989] 1 SCR 927 at 970–971.
40 Daishowa Inc v Friends of the Lubicon (1998) 158 DLR (4th) 699, 78 ACWS (3d) 861, 729–730.
41 Ibid.
42 Kysar, DA ‘Preferences for processes: the process/product distinction and the regulation of consumer choice’ (2004) 118(2) Harvard Law Review 525 at 535CrossRefGoogle Scholar. See generally Dent, C and Kenyon, A ‘Defamation law's chilling effect: a comparative analysis of Australian and US newspapers’ (2004) 9(2) Media & Arts Law Review 89Google Scholar.
43 Other causes of action are available. Some of these are considered in section 6 below.
44 See section 4 below.
45 [1995] 2 SCR 1130; Goddard v Day (2000) 194 DLR 559.
46 From the US see Gordon v Marrone 590 NYS 2d 649, 656 (1992). See also Canan, P and Pring, GW ‘Studying strategic lawsuits against public participation: mixing quantitative and qualitative approaches’ (1988) 22(2) Law & Society Review 385 at 387CrossRefGoogle Scholar.
47 S Lott ‘Corporate retaliation against consumers: the status of strategic lawsuits against public participation (SLAPPs) in Canada’ (2004), https://www.piac.ca/wp-content/uploads/2014/11/slapps.pdf; Young, above n 15, at 559–560; https://www.wcel.org/blog/new-victory-anti-slapp-law-bittersweet; https://www.cbc.ca/news/canada/british-columbia/legislature-passes-anti-slapp-1.5049927.
48 See the Courts of Justice Act 1990, ss 137.1–137.5.
49 Courts of Justice Act 1990, s 137.1; Protection of Public Participation Act 2019, s 2.
50 Ibid, s 137.1(3); s 4(1)(a) and (b).
51 1704604 Ontario Ltd v Pointes Protection Association 2018 ONCA 685 at [50]–[56] per Doherty JA.
52 Courts of Justice Act 1990, s 137.1(4)(a)(i); Protection of Public Participation Act 2019, s 4(2)(a)(i).
53 Ibid, s 137.1(4)(a)(ii); s 4(2)(a)(ii).
54 1704604, above n 51, at [67]–[84].
55 Ibid, at [85]–[101].
56 Courts of Justice Act 1990, s 137.1(4)(b); Protection of Public Participation Act 2019, s 4(2)(b).
57 Ibid, s 137.1(7); s 7(1).
58 2018 ONCA 685; 2020 SCC 22; Fortress Real Developments Inc v Rabidoux 2018 ONCA 686; Platnick v Bent 2018 ONCA 687; Veneruzzo v Storey 2018 ONCA 688; Armstrong v Corus Entertainment Incorporated 2018 ONCA 689; Able Translations Ltd v Express International Translations Inc 2018 ONCA 690.
59 1704604, ibid, Brown and Huscroft JJA concurring.
60 Ibid, at [65].
61 Ibid.
62 Ibid, at [59].
63 Ibid. Such as the ‘conduct of governmental affairs and the operation of the courts’.
64 Ibid, at [61]
65 2020 SCC 22, at [73]–[82].
66 2018 ONCA 685, at [78].
67 Ibid, at [73]–[74].
68 Ibid, at [75].
69 Ibid.
70 2020 SCC 22, at [49], per Côté J.
71 2018 ONCA 685, at [83].
72 2020 SCC 22, at [55]–[60].
73 2018 ONCA 685, at [86]; 2020 SCC 22, at [18], [3], [33], [48], [61], [82].
74 2018 ONCA 685, ibid, at [88].
75 Ibid, at [90].
76 Lott, above n 47; Young, above n 15. See also V Pelletier et al ‘Strategic lawsuits against public participation (SLAPPs) report 2009’, 9 August 2008, Uniform Law Conference of Canada, https://www.ulcc.ca/en/annual-meetings/235-2008-quebec-city-qc/civil-section-documents/448-strategic-lawsuits-against-public-participation-slapps-report-2008?showall=&limitstart=.
77 On 4 June 2009 an Act to amend the Quebec Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate came into force. The Act amended Art 54 in Chapter III of Title II of Book I of the Code by giving judges powers to ‘impose sanctions for improper use of procedures’: see http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2009C12A.PDF.
78 Similar legislation has been proposed in Nova Scotia and New Brunswick but in both provinces the Bills were not passed.
79 Young, above n 15, at 561.
80 See section 4.
81 Young above n 15, at 562.
82 Although it appears that in Ontario and British Columbia this is not the case (see above n 57).
83 Oster, above n 29, at 258.
84 Post, RC ‘The social foundations of defamation law: reputation and the constitution’ (1986) 74 California Law Review 691CrossRefGoogle Scholar.
85 Young, above n 15, at 548–549; Grant v Torstar Corpn, above n 28, at [58], [111]; WIC Radio Ltd v Simpson 2008 SCC 40, [2008] 2 SCR 420, at [2]; R v Lucas [1998] 1 SCR 439, 157 DLR (4th) 423, at 463.
86 AGD, above n 30, pp 38–39. As discussed below, the need for such a mechanism is particularly acute in the context of smaller companies who do not have the means to deal with attacks on their reputation.
87 Above n 34, at [91].
88 Ibid, at [26] per Lord Bingham; [101] per Lord Hope; [120] per Lord Scott. See also Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, at 547 per Lord Keith.
89 Dixon v Holden (1868–69) LRR 7 Eq 488, at 492.
90 2002 SC 8, [2002] 1 SCR 156, at [72].
91 As noted above, this does not seem to be the case in Canada.
92 Economic loss as a result of a depreciation in corporate goodwill is discussed in section 7 below.
93 Post, above n 84, at 696; Oster, above n 29, at 278.
94 Oster, above n 29, at 259. See also The Metropolitan Saloon Omnibus Co (Ltd) v Hawkins (1859) 4 Hurlstone & Norman Exchequer Reports (H&N) 87 per Pollock CB, at 90.
95 Oster, above n 29, at 259; Milo, D Defamation and Freedom of Speech (Oxford University Press, 2008) p 27CrossRefGoogle Scholar.
96 Milo, ibid.
97 Post, above n 84, at 693.
98 Milo, above n 95, p 27.
99 Smythe, J et al. Corporate Reputation: Managing the New Strategic Asset (Random House, 1992) p 4Google Scholar.
100 (2005) 41 EHRR 22.
101 Ibid, at [94]. In the UK, see the Companies Act 2006, s 172(1)(d), which requires directors to take account of ‘the impact of the company's operations on the community and the environment’.
102 Young, above n 15, at 560–563.
103 Young, above n 29, at 594–595.
104 Submission to the Joint Parliamentary Committee Appointed to Conduct Pre-Legislative Scrutiny of the Draft Defamation Bill (12 July 2011) p 3, http://www.lawcouncil.asn.au; Rolph, D ‘A critique of the national, uniform defamation laws’ (2008) 16(3) Torts Law Journal 207 at 217Google Scholar.
105 See section 2.
106 Brett Wilson LLP ‘Defamation Act 2013: A summary and overview six years on’ (Inforrm 29 January 2020), available at https://inforrm.org/2020/01/29/defamation-act-2013-a-summary-and-overview-six-years-on-part-1-sections-1-to-3-brett-wilson-llp/.
107 PJ Davies ‘Insurance for groups to restore reputations’ (The Financial Times, 8 May 2011) https://www.ft.com/content/8a61e98a-79a3-11e0-86bd-00144feabdc0.
108 NSW Government, above n 7, para [2.8].
109 Despite a claimant's prospect of success, litigation of any kind can be damaging, and can cause more damage to the claimant than the alleged defamatory statement. This is illustrated by the McLibel litigation (McDonald's Corporation v Steel & Morris [1997] EWHC QB 366) which became the longest libel case in UK history. Although McDonalds ‘won’, the victory was pyrrhic, in that it cost them approximately £10 million and was considered a public relations disaster. See generally http://news.bbc.co.uk/1/hi/uk/4266741.stm.
110 See section 7.
111 NSW Government, above n 7, para [2.4].
112 Coe, above n 1, p 257.
113 See Civil Law (Wrongs) Act 2002, s 121(2); Defamation Act 2006, s 8(2); Defamation Act 2005, s 9(2).
114 For examples from the UK relating to English and Welsh law see section 2. From Canada see Young, above n 15, at 577.
115 AGD, above n 30, pp 38–39.
116 NSW Government, above n 7, para [2.9].
117 FSB, above n 35.
118 See above n 108.
119 AGD, above n 30, p 38.
120 From Australia see J Borland ‘Five questions (and answers) about casual employment’ The Conversation, 30 October 2018 https://theconversation.com/five-questions-and-answers-about-casual-employment-105745; from the UK see Department for Business, Energy and Industrial Strategy ‘The characteristics of those in the gig economy’ February 2018, p 5 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/687553/The_characteristics_of_those_in_the_gig_economy.pdf. In Canada, the most recent Labour Force Survey indicates that 13.3% of employees (2.1 million) worked in a temporary job in 2018, up from 11.8% (1.4 million) in 1998: https://www150.statcan.gc.ca/n1/daily-quotidien/190514/dq190514b-eng.htm.
121 MDAP PCC-541 d30, above n 14, p 3.
122 AGD, above n 30, pp 38–39.
123 Duke of Brunswick v Harmer (1849) 14 QB 185, 117 ER 75; Loutchansky v Times Newspapers Ltd (Nos 4 and 5) [2002] QB 783, at 817–818; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 194 ALR 433.
124 For example, over the Christmas period, or to deal with a large order or help on a short-term project.
125 Collins, above n 20, at 450.
126 M Douglas ‘Before you write that scathing online review, beware of defamation’ (The Conversation, 19 March 2018) available at https://theconversation.com/before-you-write-that-scathing-online-review-beware-of-defamation-92595; A Lutz ‘Restaurant owner: my two star Yelp rating is ruining my small business’ Business Insider Australia, 25 April 2013: https://www.businessinsider.com.au/owner-yelp-is-bad-for-small-business-2013-4?r=US&IR=T. In the UK, the Competition & Markets Authority announced in May 2020 that it would require ‘several major websites’ to reveal how they detected, investigated and responded to fake and misleading reviews after receiving complaints that the sites were failing to stop abuse of their systems: see https://www.gov.uk/government/news/cma-investigates-misleading-online-reviews; A Ellson ‘Watchdog tackles shopping websites over fake reviews’ (The Times, 23 May 2020) p 36.
127 Section 50 provides: Where a body corporate is: (a) a holding company of another body corporate; or (b) a subsidiary of another body corporate; or (c) a subsidiary of a holding company of another body corporate; the first-mentioned body and the other body are related to each other. Schedule 1[2] to the Model Defamation Provisions 2020 extends this by also excluding companies that are associated entities of other corporations from having a cause of action for defamation. Pursuant to Schedule 1[1] associated entities have the meaning prescribed by the Corporations Act 2001, s 50AAA. MDAP PCC-541 d30, above n 14, p 3.
128 SCAG, above n 17, pp 14–15.
129 AGD, above n 30, pp 38–39.
130 Rolph, above n 20, at 195; Collins, above n 20, at 453–455.
131 From Australia see Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417, [1999] VSCA 180, BC9908954, [57]. From England and Wales see Jameel, above n 34. From Canada see Grant v Torstar Corpn, above n 28, at [28].
132 Lachaux v Independent Print Ltd [2019] UKSC 27, at [20].
133 [2009] HCA 16, (2009) 238 CLR 460.
134 Ibid, per French CJ, Gummow, Kiefel and Bell JJ, [12].
135 For example, see Ratcliffe v Evans [1892] 2 QB 524; Joyce v Motor Surveys Ltd [1948] Ch 252; Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69, (2001) 208 CLR 388; Mahon v Mach 1 Financial Services Pty Ltd [2012] NSWSC 651.
136 From Australia see Palmer Bruyn, ibid, per Gummow J at 404; Radio2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, (2009) 238 CLR 460, per French CJ, Gummow, Kiefel and Bell JJ, [2009] HCA 16, 468–469. From England and Wales see Ratcliffe v Evans, ibid, per Bowen LJ at 527–528. From Canada see Lysko v Braley (2006) 79 OR (3d) 721 (CA), at [133].
137 The Australian Consumer Law (ACL) is contained within Schedule 2 to the 2010 Act. Section 18 enshrines Section 52 of the Trade Practices Act 1974 into the ACL.
138 Competition and Consumer Act 2010, s 82.
139 In respect of malicious falsehood see Mullis, A and Parkes, R QC (eds) Gatley on Libel and Slander (Sweet & Maxwell, 12th edn, 2013)Google Scholar paras [21.1]–[21.3].
140 (2002) 120 FCR 191, [2002] FCA 860. See also National Auto Glass Supplies (Australia) Pty Ltd v Neilsen & Moller Autoglass (NSW) Pty Ltd (No 8) [2007] FCA 1625.
141 For an example of how the courts have attempted to prevent companies from trying to circumvent the prohibition on their right to sue in defamation see AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 970; Coe, above n 1, p 260; Rolph, above n 20, at 199.
142 Orion, above n 140, per Weinberg J, at 195–198.
143 Ibid, at 227.
144 Ibid, at 213–215.
145 Ibid, at 223.
146 Ibid, at 238. Orion was awarded $85,000 in damages.
147 Ibid, at 232–235.
148 For analysis of the serious harm test see E Linch ‘Defamation update: serious harm, Lachaux and beyond’ Inforrm, 4 December 2019 https://inforrm.org/2019/12/04/defamation-update-serious-harm-lachaux-and-beyond-emma-linch/.
149 Pursuant to Undre v Harrow [2017] EMLR 3 the losses incurred must relate to a reduction in profit, as opposed to turnover. However, such loss can be inferred from relatively slim materials. See Brett Wilson LLP v Persons Unknown [2016] 4 WLR 69.
150 ReachLocal UK Ltd v Bennett [2015] EMLR 7.
151 By analogy, see Lisle-Mainwaring v Associated Newspapers Ltd & Another [2017] EWHC 543 (QB), at [131]–[180].
152 R+V Versicherung v Risk Insurance & Reinsurance Solutions SA & Others [2006] EWHC 42 (Comm); Tomlinson, H QC and Vassall-Adams, G QC (eds) Online Publication Claims: A Practical Guide (Matrix Chambers, 2017) para [5.34]Google Scholar.
153 For example, see R (Nicholds) v Security Industry Association [2006] EWHC 1792 (Admin), per Kenneth Parker QC, at [72] and [73]; R (Malik) v Waltham Forest NHS Primary Care Trust [2007] EWCA Civ 265, per Auld J at [23] and [42].
154 There is a line of Strasbourg jurisprudence, beginning with Van Marle v Netherlands App Nos 8543, 8674, 8675 and 8685/79 (1986) 8 EHRR 483, [63], that determines that the goodwill of a professional practice, or of a ‘business engaged in commerce’, can be a possession for the purposes of Art 1 of Protocol 1 of the European Convention on Human Rights. See Coe, P and Brown, J ‘What's in a name? The case for protecting the reputation of businesses under article 1 protocol 1 of the European Convention on Human Rights’ (2019) 10(3) Journal of European Tort Law 286Google Scholar.
155 To the contrary, pursuant to Collins Stewart v Financial Times Ltd [2005] EMLR 5, reduction in share value is not sufficient as share price is not an aspect of goodwill or an asset of the company (see also Dillon LJ's judgment in Lonrho v Fayed (No 5) [1994] 1 All ER 188 at 196(a)–(g)).
156 For analysis of the conflicting case law, particularly from the European Court of Human Rights, see Coe and Brown, above n 154.
157 Although mainly concerning malicious falsehood, this point is illustrated by Tesla Motors Ltd and Another v British Broadcasting Corpn [2013] EWCA Civ 152, per Moore-Bick LJ, at [46].
158 Ibid, at [44].
159 See the fourth ‘abstract’ method for demonstrating serious financial loss (a reduction in balance sheet ‘goodwill’) at section 7(a) above.
160 Tomlinson and Vassall-Adams, above n 152, para [5.34].
161 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, at 547 per Lord Keith.
162 Keay, A Directors’ Duties (Jordans, 2nd edn, 2014) p 157Google Scholar; Ribstein, L ‘Accountability and responsibility in corporate governance’ (2006) 81 Notre Dame Law Review 1431 at 1457–1458Google Scholar.
163 Ibid.
164 For example, establishing that a potential employee chose to look elsewhere for employment due to the defamatory statement; or that an employee's performance is below that of a potential employee who would have applied for a position within the company, but for the statement, and that performance shortfall has had, or is likely to have, a negative financial impact.
165 Chan, G ‘Corporate defamation: reputation, rights and remedies’ (2013) 33(2) Legal Studies 268 at 281CrossRefGoogle Scholar.
166 Ibid.
167 See Tesla above n 157; Coe, above n 29, at 332–333.
168 Coe, above n 29, at 332.
169 Milo, above n 95, p 168.
170 This corresponds with the position in the United States. See Philadelphia Newspapers Incorporated et al v Hepps et al 475 US 767 (1986). However, in Canada, it was said in Pressler v Lethbridge (1997) 153 DLR (4th) 537 that the common law presumption of falsity does not violate the Canadian Charter of Rights, and is too well established to be changed except by the Supreme Court (Bank of British Columbia v Canadian Broadcasting Corpn (1993) 108 DLR (4th) 178).
171 See section 6.
172 Milo, above n 95, pp 166–167.
173 475 US 767 (1986).
174 Steffan, BJ ‘The falsity burden of private libel plaintiffs since Philadelphia Newspapers, Inc v Hepps’ (1994) 16(3) Communications and the Law 57Google Scholar.
175 In Post's view ‘[t]he issue of truth is essential to a plaintiff's rehabilitation…’: Post, above n 84, at 713; McNamara, L Reputation and Defamation (Oxford University Press, 2007) p 52CrossRefGoogle Scholar.
