An analysis of three distinct approaches to using defamation to protect corporate reputation from Australia, England and Wales, and Canada

Abstract

The use of defamation law to protect corporate reputation is controversial. Australia, Canada and England and Wales have been at the centre of this debate, as although their defamation laws share many common characteristics, they adopt distinct approaches to allowing companies to sue in defamation. Consequently, in all three jurisdictions defamation law remains a cause of action that is relied upon by companies to protect their reputations. The primary concern of this paper is the efficacy of these approaches,1 particularly in light of the reforms made to Australia's defamation laws, adopted in 2020, that further restrict the right of corporations to sue in defamation. Ultimately, it argues that the Australian and English and Welsh approaches disproportionately disadvantage companies, particularly small ones, whereas the Canadian approach overprotects corporate reputation. It concludes by offering an alternative way forward that, although not perfect, provides a better balance between the interests.