ABSTRACT
This article examines the tort of injurious falsehood. While the focus is on Canadian law, much of the analysis will reflect the law in other common law jurisdictions. There is uncertainty with regard to several elements of injurious falsehood. The article considers how to resolve confusion over the meaning of some of those elements, and what the scope of the tort should be in light of modern realities, including the importance of freedom of expression, the role of corporations in 21st century society and the existence of other torts addressing false statements of fact. The chapter also describes the results of a small empirical study of injurious falsehood, which shows that while the tort is not pleaded as often as defamation, defamation has not effectively eclipsed the tort of injurious falsehood.
Ultimately, this chapter argues that there remains a role for injurious falsehood, but that it is rightly a narrow one. So long as defamation remains as plaintiff-friendly as it currently is, many cases best thought of conceptually as injurious falsehood will be pleaded as defamation. That is the result of a problem with the scope of defamation law, which in my view should not apply to protect corporate reputation, rather than a problem with the law of injurious falsehood. Further discussion of the scope of Canadian defamation law is beyond the scope of this chapter. Rather, it will focus on clarification and minor changes that ought to be made to the law of injurious falsehood to ensure it achieves the goals it is intended to.
Young, Hilary, Revisiting Injurious Falsehood (May 1, 2020). Economic Wrongs in Tort (Hart), 2020.
First posted 2020-07-18 06:08:07
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