The media lawyer representing fish-farming critic Don Staniford has raised an intriguing legal issue related to corporations' power to muzzle their opponents.
David F. Sutherland questions whether corporations are, in fact, crazy in a legal sense. And if so, should the rules be changed regarding their capacity to sue for libel?
"We need to think about that in company with the fabulous work of Joel Bakan about whether corporations are essentialy mentally ill," Sutherland said in an interview at the Railway Club, which was posted on YouTube. "They are driven by profit, but they qualify for the elements of mental illness."
David Sutherland comments on the legal powers of corporations to sue for libel. (Copyright Clayoquotwren)
In 2004, Bakan, a UBC law professor, wrote The Corporation: The Pathological Pursuit of Profit and Power, which postulated that corporations engage in psychopathic behaviour because their directors have a legal duty to shareholders to pursue profits above all other considerations. Bakan argued that corporations' unbridled self-interest can lead them to act unethically and illegally.
Mainstream Canada, which is a subsidiary of a Norwegian aquaculture company, filed a libel action in B.C. Supreme Court against Staniford for his criticisms. The judgment is pending.
At the Railway Club after the trial, Sutherland noted that for more than a century, corporations have had the legal powers of a natural person to sue for defamation.
He suggested that the lawsuit against Staniford raises a question whether human advocates are being put in jeopardy by lawsuits designed to "vindicate corporate profits and reputation".
There's a reverse onus in defamation cases. This means that the defendant must prove what was stated was not defamatory. In other lawsuits before the courts, the onus is on the plaintiff to prove a civil wrong occurred.
Sutherland suggested a new legal approach when it comes to corporations suing for loss of reputation.
"We need to create a separate cause of action, which does not have the adverse presumptions of defamation that protect the reputations of individual people," he said, "but forces the corporation to, in fact, prove the sorts of damages and other criteria that are involved in the tort of injurious falsehood."
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