2018 May 14

L. v D., 2018 BCCA 201

The British Columbia Court of Appeal dismissed an appeal by the plaintiff from an Order striking out portions of her notice of civil claim, including claims for defamation relating to the publication of reasons for judgment of the Chief Justice of British Columbia (2010 BCSC 260) on the website of the defendant’s lawyer before that judgment was overturned by the Court of Appeal in 2011 BCCA 66.  In this decision on May 14, 2018, the Court of Appeal unanimously held that the accurate republication of a decision of a court is subject to at least qualified privilege, quoting from McDougall v Knight (1890), 25 Q.B.D. 1 (C.A.) at 11, where Fry L.J. set out the rational for the privilege: “[T]he judgment of a judge of the land is in itself an act of such public and distinct character as to make it in the interest of the commonwealth that they should know it in toto, and provided it is either given verbatim correctly, or correctly summarized, it seems to me that the public policy requires that to be the law, and I have no hesitation ins saying that I believe that to  be the law at the present day … It appears to me that it would be to put an undue fetter on the press to hold that the publication of a judgment is not privileged unless the judgment fairly summarized the evidence.  I cannot doubt that the judgments of Court must be presumed to be fair, accurate and adequate, and to make a person who reports such a judgment prove that it is so would be to put on him a burden inconsistent with the interests of the commonwealth.”  The Court of Appeal concluded that the same rationale is available today in respect to publication through the World Wide Web