DEFAMATION
• Unlike most of tort law, defamation has little to
do with protecting individual or communal
security. It is not based on “fault” or “wrongful
conduct.”
• Defamation seeks to protect the reputation of
individuals against FALSE and UNJUSTIFIED
attacks.
• Actions in defamation are geared towards the
vindication of one’s reputation, to secure
damages for any actual damage done, and to
deter other persons from making defamatory
statements.
Origins of Defamation Law
• Historically, all societies have frowned
on those who make false allegations
against other members of society.
• The Quran, Bible, Talmud, and other
ancient religious texts all forbid making
false allegations.
• Ancient Romanic and Teutonic laws all
forbade slanderous words and
punished those who made them.
Origins of Defamation Law
• The modern law of libel arose from the
Case de libellis Famosis of 1605 where
the Archbishop of Canterbury was
alleged to have been traduced and
scandalized by an anonymous person.
• It was in 1670 that tort law made a
distinction between libel and slander.
Libel and Slander
• Libel refers to false and disparaging remarks
published through printing by way of signs,
pictures, writing, films, statues, films. It is
actionable per se, even without proof of
damage. see Libel and Slander Act of Ontario.
• Slander refers to oral pronouncements that
are false and disparaging. It is only actionable
on proof of damage which must be pleaded
and proved. There are however, four classes
of slanderous statements that are actionable
per se.
Actionable Slander
• Imputation of the commission of a
serious crime punishable by a prison
term;
• Imputation of a loathsome disease, eg.
VD;
• Imputation of “Unchastity” to a woman
(this did not apply to a man)
• Imputation of unfitness to practice
one’s trade or profession.
Defamation and Free speech
• There is a debate as to whether, in a
democratic society, the state should
regulate what individuals say or publish
about other persons.
• In Canada (unlike the USA) tort law has
largely deferred to the preservation of
individual reputations, even if such
stance results in a diminished exercise
of the right to free speech.
What is Defamatory?
• There is no universal test for judging
whether the words or utterance in issue
is defamatory of a ptf.
• The usual test, however, is “whether
the words complained of are calculated
to injure the reputation of another by
exposing him/her to hatred, contempt
or ridicule.”
What is Defamatory?
• Another test is whether the words
complained of “lowers a person in the
estimation of right-thinking members of
society generally.” In other words, an
utterance is defamatory if it makes
familiar with the person to think less of
him/her.
• The standard is that of ordinary, rightthink members of society.
Objective or Subjective test?
• Jurists insist that the standard is an objective
one, and the yardstick is that of thoughtful,
informed and balanced persons.
• However, it would appear that the test is
sometimes not as robustly “objective” as
jurists have espoused in several cases. It
seems that objectivity is sometimes modified
to suit the context in which the words were
uttered and with regard to prevailing notions
of what type of utterances lower a person’s
reputation, or tarnish his/her image or expose
him/her to ridicule, shame, or pity.
Examples of Defamation
• Elizabeth French v. Smith [1923] 3
D.L.R. 904“…five fellows took Elizabeth
behind the church and screwed her.”
• Penton v. Caldwell, “he is a liar.”
• Pandolfo’s case, “he is a crook”
• Grassi’s case, “he is a child molester”
• Berkoff’s case, “he is hideously ugly.”
Social Changes and
Defamatory words
• It is arguable that words which were hitherto
considered defamatory may with passage of
time lose their defamatory sting. For example,
in
• Nowark v. Savage, and Buck v. Savage, ptfs
were respectively called homosexuals. Dfts
were held liable. With increasing acceptance
of homosexuality as a legitimate expression of
human sexuality, courts may have to
(re)examine social attitudes before finding
liability.
Social Changes and
Defamatory Words
• Similarly, it is doubtful whether a description of
someone as a communist held to be
defamatory in Dennison v. Sanderson, would
have the same meaning in current times.
• Again, to call someone a “wife-swapper”
(Hunter’s case), may not be defamatory in
country’s or provinces where wife-swapping is
an acceptable social practice devoid of
negative moral judgments.
The Essence of Defamation
• The core objective of the law of defamation is
to protect individual reputation. As the SC
noted in Hill . Church of Scientology, “a good
reputation is closely related to the innate
worthiness and dignity of the individual. False
allegations can so very quickly and
completely destroy a good reputation. A
reputation tarnished by libel can seldom
regain its former lustre.”
Victims of Defamation
• Only the living can be defamed. The
dead have no justiciable reputation,
unless the imputation made to them
reflects on the living. For e.g, to say
that the deceased could not have been
the natural father of his living children
may defame her family because their
social status is impugned.
Slander and Professionals
• Reputation is especially vital for professionals.
Therefore, words which disparage a person’s
professional capacity may amount to
defamation. For example, to call a doctor a
“quack” (Warren v. Green),or a lawyer a
“shyster” (Nolan’s case), were respectively
held to be defamatory.
• In the same vein, a professional musician of
whom it was said that he had “no aptitude for
music” or an accountant of whom it was said
that he had “no understanding of accounts”
were respectively held to have been defamed.
Making a case in Defamation
• Plaintiff must prove the following:
• That the material complained of was
defamatory
• That the material referred to him/her
(the plaintiff);
• That the material was published.
Test for Defamatory Words
• The usual standard of measurement in
defamation is said to be that of “right-thinking
members of society generally.”
• The words “right-thinking” is ill-defined and
could yield unjust or absurd results. The test
for defamation is not based on polls; it is often
based on what the relevant segment of
society thinks of the ptf, provided, that
relevant segment of society is not anti-social.
• For e.g, to say that a mafioso is not a “mademan” may diminish his standing among his
fellow criminals without being actionable.
Murphy v. Lamarsh
Dft published of the ptf (Murphy):
‘a brash young radio reporter, Ed Murphy
(heartily detested by most of the press gallery
and the members)…,”
These words were alleged by ptf to be libelous.
In the opinion of the court, the ordinary reader
of the comments would think that “there must
be something wrong or bad about this man
Murphy to make these people detest him.”
Therefore, the words were held to be
defamatory of Mr. Murphy.
INTERPRETATION
• The first rule is that words must be given their
ordinary and natural meaning.
• Natural and ordinary meaning of words
includes any inferences or implications which
they may reasonably bear. The meaning
intended by the publisher is irrelevant.
• Natural and ordinary meaning may implicate
peculiar activity of the ptf. For e.g, to say that
a kosher butcher sold bacon was held to be
defamatory.
INTERPRETATION
• Natural and ordinary meanings of
words may implicate the locale or
context in which the words were
uttered. For e.g. to call a white man a
“coloured gentleman” (although the
newspaper retracted the publication
and declared him to be of “the purest
Caucasian race”) was held to be
defamatory in Louisiana.
INTERPRETATION
• There need not be a direct assault on
the reputation of ptf.
• Courts have to look at the overall
context, the prominence or lack thereof
given to the offending works.
• In slander, courts would also look at the
tone of voice, body language, etc to
determine whether the words are
libelous.
INTERPRETATION
• Ultimately, the court must determine, as
a question of law, whether the words,
gestures, etc, in the context in which
they were uttered or published are
capable of bearing a defamatory
meaning.
INNUENDO
• Words may appear harmless on the
surface but in narrower contexts in
which special knowledge is possessed
by certain people, be defamatory.
• There are two categories of
innuendoes. The first refers to words
with technical meaning which depends
on some special knowledge possessed
by a limited number of persons only.
INNUENDO
• The second category refers to words
which may on certain occasions bear
some special meaning other than their
natural meaning because of some
extrinsic facts of circumstances.
• A ptf must plead and prove a legal
innuendo and the underlying facts
which make the words have a special
meaning.
Material Must refer to Ptf
• In addition to the material being
defamatory, ptf must prove that the
words were spoken of and concerned
him/her. This is often known as the
“colloquium”.
• There is little problem when the ptf is
specifically named in the offending
material.
The Colloquium
• The challenge is when the ptf has to be
identified by inference. The law is that
ptf must show that a reasonable reader
would identify the material as referring
to the ptf.
• Identifying the ptf is problematic when
s/he is part of a group. To say that “all
lawyers are thieves” is obviously an
exaggeration which cannot ground an
action in libel.
Mass Defamation
• However, where the group is a relatively small
one, members may recover. The courts have
not sufficiently delineated “small” groups from
‘large’ one.
• In Booth v. B.C.T.V, a prostitute interviewed
by the TV stated that 2 members of the Narc
Squad “that are high up, right up on top” took
payoff. 11 members of the Vancouver Police
Dept., sued. The court found for the 2 top
officers but dismissed the action of the other 9
because the defamatory comments could not
be said to have referred to them.
Hate Propaganda
• Owing to the inadequacies of defamation in
protecting minority groups, legislation has
been enacted to offer protection to victims of
“hate propaganda.”
• s.319 of the CC, “every one, who by
communicating statements in any public
places, incites hatred against any identifiable
group [distinguished by colour, race, religion,
or ethnic origin] where such incitement is
likely to lead to a breach of the peace” or
Hate Propaganda
• Every one who, by communicating
statements, other than in private
conversation, willfully promotes hatred
against any identifiable group is guilty
of an offence.”
• Questions and numerous litigations
have arisen as to whether such laws
limit the right to free speech in a
democratic society. See the Zundel
cases.
Publication of Material
• The test requirement is that the material must
be published. Publication means
communication to a third person.
• If words have been used, ptf must prove that
other persons heard and understood the
offending words.
• If, however, publications was never intended,
and the dft could not by reasonable care have
avoided it, there would be no liability. Some
element of fault is required.
Apology
• Given the important role that “fault”
plays in attaching liability, especially in
cases of accidental publication of
defamatory material, an apology by the
dft is accorded serious weight.
• Many jurisdictions have enacted laws
empowering the courts to take
apologies into consideration in
determining quantum of damages.
Defences
• Truth is an absolute defence to
defamation. No one is entitled to a
reputation s/he does not possess.
• Dft must not only prove the truth of the
material in their ordinary and natural
meaning but also in their inferential and
innuendo meanings.
• It is the substance of the truth, not its
minute details that matter.
Absolute Privilege
• Judges, witnesses, advocates, and parties to
a litigation may speak freely and falsely while
participating in judicial proceedings.
• Court documents, proceedings, and
client/lawyer communications pertaining to a
suit are equally immune.
• Reports of judicial proceedings are also
protected, provided they are fair and accurate,
published contemporaneously with such
proceedings, and where necessary, must
contain a reasonable statement of explanation
by the ptf.
Absolute Privilege
• Statements made on the floor of
Parliament, communications made
between Ministers of the Crown, and
communications between very senior
members of the military are also
protected.
Qualified Privilege
• This is conditional immunity that attaches to
certain occasions below the ambit of absolute
privilege. It attaches to the occasion upon
which the communication is made, and not to
the communication itself.
• It arises “where the person who makes the
communication has an interest or a duty, legal
social, or moral to make it to the person to
whom it is made, and the person to whom it is
made has a corresponding interest of duty to
receive it.” Whether the occasion is privileged
is a matter of law.
Qualified Privilege
• Only statements which are relevant to the
privileged communication are protected. For
the defence to hold, there must be no malice
on the part of the dft and the privilege must
not be exceeded.
• Qualified privilege arises where in cases of (1)
public interest, or (2) moral or legal interest to
protect another’s interest, or (3) common
interest or mutual concern, (4) protection of
one’s own interest.
Self-Protection
• A person is at liberty to rebut wrongful
imputations made against his/her
reputation. The response must be
limited to words necessary to “put the
records straight.”
• The defence cannot be used to destroy
another person’s reputation. The
refutation must be addressed to those
with a duty to receive it.
Mutual Concern
• On a subject in which parties have a
mutual legitimate interest, (business or
pecuniary) communication between
parties enjoy qualified privilege.
Shareholders and directors may, in the
absence of malice, exchange
information about employees without
attracting tort liability.
Jones v. Campbell
• Burnley “Rocky” Jones, a famous Black
lawyer was sued by Constable Campbell for
comments he made at a public press
conference in respect of a pending litigation.
• Campbell had been invited by the principal of
a predominantly Black school in Halifax to
investigate two incidents of theft at the school.
In her investigations, Campbell strip searched
three Black female students in the
predominantly Black school located in a poor
neighbourhood. Following public outrage, the
girl’s parents sued Campbell and the police.
Jones v. Campbell
• At a press conference called by Rocky Jones,
the media asked Jones questions and in
response, he said that in his view, Campbell
would not have strip searched the girls if they
were White girls or girls from affluent families.
• Campbell sued in defamation alleging that
Jones’ comments and written speech
suggested that she was a racist. The trial
court found for her on the basis that the press
conference went beyond the needs of
qualified privilege. Jones appealed to the NS
CA.
Jones v. Campbell
• In a split decision, the CA held that for
qualified privilege to apply, the dft must
communicate appropriate information to the
appropriate people. Qualified privilege does
not fail simply because the dft addressed the
public at large. As long as there is reciprocity
between the informer and the informed, and
the statements were germane and
appropriate, and there is no malice on the part
of the dft, the defence of qualified privilege will
apply.
Moral or legal duty to protect
the interest of another
• A person who makes a statement in the
discharge of a public or private duty, whether
legal, moral, or social enjoys qualified
privilege. The recipient of the information must
have a reciprocal interest in receiving.
• This defence usually applies when parties are
responding to specific inquiries, for e.g,
character references on discharged
employees or defamatory statements made
by a father to his daughter about a
prospective husband.
Watt v. Longsdon
• Ptf sued the dft for sending his wife, who was
in England, a letter which indicated that he
had had “immoral relations” with his
housemaid while living in Morocco. The ptf’s
wife sued him in divorce as a result. Dft, a
friend of the wife, had done business with ptf
in Morocco. Dft pleaded in defence that he
was under a moral duty to inform ptf’s wife of
the alleged affair in Morocco. The CA in
England held that there was no moral or
social duty to make such communication.
Public Interest
• Comments made by publishers to the public
on a matter of public interest may be immune
from liability. The success of this defence,
especially when used by politicians, is mixed.
• The bone of contention has been the role of
the media, particularly the print media in
communicating information to the public.
• The law in Canada is that the media has the
same right as any other person to report
truthfully and comment fairly upon matters of
public interest. See the Globe and Mail v.
Boland; Banks v. Globe and Mail.
Public Interest
• However, there have been some statutory
protections for the media, on the conditions
that their reports are:
• fair and accurate;
• devoid of malice;
• concern the proceedings of Parliament;
• Not blasphemous, seditious, or indecent;
• and concern matters of public interest. See
Hill v. Church of Scientology
Hill v. Church of Scientology
• The SC expanded the ambit of qualified
privilege to include court documents which
have not yet been filed but were proposed to
be filed. The defence was defeated, however,
because the dft exceeded the bounds of the
privilege.
• Note that actual court documents are covered
by absolute privilege but the reporting and
republishing of those same documents
outside the court is protected only by qualified
privilege which may be defeated by malice, or
excess of privilege.
Excess of Privilege
• There is an excess of privilege where
the dft used words which were not
relevant to the discussion or if s/he
communicated the material to those
who are not entitled to receive it.
• Unless the publisher has a qualified
privilege to publish the material to the
public, publication to the “world at
large” would amount to an excess of
privilege.
Malice
• Malice refers to ill-will, bad faith or
spite. It can also mean the absence of
honest belief in the material published.
faith is a question of fact whether the
dft was actuated by malice.
• Malice goes to the state of mind of the
dft at the time the offending words were
published.
• The onus is on the ptf to prove malice.
Fair Comment
• Persons may comment on matters of
public interest, even if their comments
are defamatory of other persons, if
certain conditions are met.
• As with other aspects of defamation
law, the Canadian approach has been
quite conservative.
• The conditions for fair comments are
stringent.
Conditions for Fair Comment
• The comment must be on matter of
public interest;
• The comment must be based on fact;
• The comment must be recognizable as
comment;
• “Could any man/woman honestly
express that opinion on the proved
facts?”
• In addition, there should be no malice.