Oh, THAT Prime Minister? - Defamation through Reference to Title or Occupation
Tarragon Theatre hasn’t announced next year’s season yet, but Michael Healey’s Proud won’t be part of it. And Healey has been making media circuit rounds, alleging libel chill as the reason why his play wasn’t selected. Proud never identifies the subject by name, but Healey openly acknowledges that his play satirizes Prime Minister Stephen Harper.
Some arts organizations have become sensitive to creating political drama through their season programming, and though the artistic director at Tarragon, Richard Rose, hasn’t commented on his reasoning for passing over Proud, Healey asserts a concerned Tarragon board member questioned whether certain passages discussing personal integrity could be seen as libel.
But if Stephen Harper is not named in the play, can a person identified through reference to his/her position or title be defamed under Canadian law?
Brown on Defamation indicates that in an action alleging defamation, it is not required that the plaintiff be named specifically, so long as the plaintiff can be identified through the defamatory publication. While in other cases, references to occupation may not be specific enough to indentify an individual, given Harper’s unique occupation as the currently-sitting-Canadian-prime-minister, references to his occupation are likely to be pretty identifying (though without script in hand, it’s difficult to tell exactly how Healey makes it clear that he’s referring to Harper).
As the Supreme Court indicated in Hill v. Church of Scientology of Toronto, public figures are not given special treatment under Canadian defamation law, unlike in the United States, where there is broader latitude arising from freedom of speech considerations (including for such things as parody). Defamatory statements in literary works, films or plays are not shielded either. If the portrayal is found to be defamatory and not within the protection of fair comment (and that’s another set of hoops to jump through), the Tarragon could potentially face some kind of legal liability.
