But Names Won't Necessarily Hurt Me: Considering the Effect of Disparaging Statements on Reputation

The author proposes a change in how some courts apply the test for defamatory meaning-a change that in her view would help to protect freedom of expression without compromising the protection of reputation or altering the substantive law of defamation. To be defamatory, a statement must tend to harm reputation. However, Canadian case law shows that disparaging statements are often assumed to be defamatory, even when they may have little potential to harm reputation because a right-thinking audience member is unlikely to believe them. The author argues that this is the result of an overly literal approach to ordinary meaning, a disregard for how right-thinking people interpret statements, and a tradition of not adducing evidence of context to prove meaning. Social science evidence shows that a variety of factors-from pre-publication knowledge and opinions to the form in which the words were expressed-can substantially alter an audience's interpretation of a statement. The approach proposed by the author would require courts to place more emphasis on the entire context of an impugned statement in determining whether the statement would lower a right-thinking person's estimation of the plaintiff. Although leading more evidence of context would add a degree of complexity, it would not place an undue burden on the parties. Any loss of efficiency would be justified, given the importance of freedom of expression and the fact that the aim of defamation law is to protect reputation, not feelings.