Niemela v. Malamas
Page 8
The common law authorities in Canada and the United Kingdom have
suggested the guiding principle that interlocutory injunctions should
only be granted to restrain in advance written or spoken words in the
rarest and clearest of cases — where the words are so manifestly
defamatory and impossible to justify that an action in defamation
would almost certainly succeed. Given the value we place on freedom
of expression, particularly in matters of public interest, that guiding
principle has much to recommend it.
[Emphasis in original.]
[20]
As can be seen from the above passages, where defamation is alleged by the
party seeking an interlocutory injunction, the threshold required to meet the first part
of the three-part RJR-MacDonald test is elevated from a “serious question to be
tried” to the “clearest of cases” where the words complained of are “manifestly
defamatory”. This elevated threshold in defamation cases was also discussed by
Grauer J. in Gant v. Berube, 2013 BCSC 1721 at paras. 12 and 16.
[21]
To show the statements are manifestly defamatory the plaintiff must satisfy
the test for defamation as articulated in Grant v. Torstar Corp., 2009 SCC 61 at
para. 28:
(1) that the impugned words were defamatory, in the sense that they would
tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2)
that the words in fact referred to the plaintiff; and (3) that the words were
published, meaning that they were communicated to at least one person
other than the plaintiff.
[22]
As I will explain further below, a central question on Google’s application is
whether Google published the words complained of by Mr. Niemela. However, it is
not necessary to determine that question here in order to dispose of the application
for an injunction against Google.
[23]
That is so because even if the plaintiff were to meet the heightened threshold
at the first step of the RJR-MacDonald test, his application fails on the second and
third steps for the following reasons.
2015 BCSC 1024 (CanLII)
With the coming into force of the Canadian Charter and the Quebec
Charter, these safeguards protecting freedom of expression and
freedom of the press have become even more compelling.
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