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by Gil Zvulony, Canadian Defamation Lawyer

It is common practice these days for police departments, and other law enforcement bodies to publish the names of people that have been charged with a criminal offence.  Typically, these press releases are distributed to the media and are then picked up in the press.  For example the RCMP has its own Newsroom section on its website where the public can view the names of people that the RCMP have charged.  These press releases typically persist on the police department’s website and are indexed by search engines.   The end result is that an internet search for the accused’s name yields the news that a person was charged.  The question arises about whether this common practice is defamatory?

What is Defamation

The Supreme Court of Canada ( in Grant v. Torstar Corp., 2009 SCC 61 (CanLII)) stated that in order to establish a claim for defamation a plaintiff must establish that:

a) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
b) the words in fact refer to the plaintiff; and
c) the words were published, i.e., that they were communicated to at least one person other than the plaintiff.

Once the plaintiff has established these elements, falsity and damage are presumed, and the onus shifts to the defendant to advance an appropriate defence to escape liability.  A likely defence in cases of reporting charges or convictions would be the defence of “justification”.  Justification, in law, means that the defendant takes the position that the words published are true and intends to prove it.

Reporting Charges or Guilty Verdicts

Applying the above test we see that in most cases there is no problem by simple publishing a story that someone was charged with an offence; provided that that person was in fact charged.  The law is quite clear in this regard.  Generally speaking, a statement indicating that a person has been charged with an offence is not defamatory because reasonable persons are mindful that an accused is presumed innocent until proven guilty: see Miguna v. Toronto (City) Police Services Board, [2004] O.J. No. 2455 (S.C.) at para. 6, aff’d [2005] O.J. No. 107 (C.A.); see also Sauvé v. Canada,  [2010] F.C.J. No. 887 (T.D.) at para. 27.

An interesting issue arises when a press release goes beyond the simple reporting of charges.  What happens when the press release adds “commentary” and “background” to the press release?  The law states that defamation may still exist if what is reported implies that the accused person has engaged in conduct more serious than the charge or conviction: see M.D. Mineralsearch Inc. v. East Kootenay Newspapers Ltd., 2000 BCSC 1456 (CanLII), 2000 BCSC 1456.

This was one of the issues that the Ontario Court of Appeal dealt with in the case of  TPG Technology Consulting Ltd. v. Canada, 2012 ONCA 87 (CanLII).  The appellants, TPG Technology Consulting Ltd.  were charged under the Competition Act, R.S.C. 1985, c. C-34s. 47.   The appellants alleged that the charges and the manner in which the charges were announced to the public, “were part of a deliberate and malicious effort by the respondents to discredit and harm the appellants”.  The respondents, the Crown,  argued that they were simply reporting the truth.

The alleged defamatory words that have been disseminated on the Bureau’s website:

As a result of the agreement, the bidders were allegedly able to maximize the rates at which services were to be provided to the various departments.

…the Bureau’s best weapons to combat these secret criminal anti-competitive agreements.

Some recent studies suggest that in cases where bid- rigging occurs, the price paid for the good or service typically increases by about 20 percent.

The Bureau found evidence indicating that several IT services companies in the National Capital Region secretly coordinated their bids in an illegal scheme to defraud the government by winning and dividing contracts, while blocking out honest competitors.

Bid-rigging is a criminal offence where bidders secretly agree not to compete or to submit bids that have been pre-arranged among themselves.  Their goal is to thwart the competitive tendering process and inflate prices to purchasers.

Bid-rigging charges under s. 47 of the Competition Act. Charges laid against 7 companies and 14 individuals based on allegations that the parties entered into agreements to coordinate their bids in an illegal scheme to defraud the government by winning and dividing contracts for information technology services

 

The story was picked up in several media outlets.

The plaintiff sued and the crown sought to have the claim dismissed on the grounds that the impugned statements are not capable of bearing defamatory meaning.  The lower court allowed the Crown’s motion and dismissed the claim (see 2011 ONSC 4604 (CanLII), 2011 ONSC 4604, [2011] O.J. No. 3511.  The plaintiff appealed.

The Court of Appeal gave important parameters for reporting that someone was charged with an offence.  The Court stated the following:

[10]      The motion court judge appropriately characterized the issue, at para. 18 of his reasons, as whether the respondents “went beyond simply stating that the [appellants] had been charged with bid-rigging; specifically, did they imply that the plaintiffs engaged in conduct more serious and blameworthy than bid-rigging.”

[11]      A report that someone is under investigation or that they have been arrested for, or charged with, a criminal offence is not considered the “equivalent of saying that the person has committed the crime unless there is something in the language of the report that suggests the plaintiff’s guilt”: Raymond E. Brown, Brown on Defamation, loose-leaf, (Toronto: Carswell, 2011), ch.4 at pp. 4-165 to 4-166; Roger D. McConchie & David A Potts, Canadian Libel and Slander Actions, (Toronto: Irwin Law Inc., 2004) at p. 516.  However, reports of arrest or charges will be capable of conveying a defamatory meaning, “where it is stated, either directly or by clear implication, that an offence has been committed, and the qualifications contained in any of the surrounding statements are not sufficient to outweigh or nullify the effect of what appears to be a plain statement of fact”: Shave v. West Australian Newspapers Ltd., [2000] W.A.S.C. 172 (S.C.) at para. 29.

[12]      A distinction is drawn “between reports which are thought to do no more than state that a person is under investigation or has been charged with a criminal offence” and reports which assert “directly, or by clear implication, that the plaintiff has been involved in acts amounting to a criminal offence”; the former are generally not considered capable of a defamatory meaning while the latter are: Shave v. West Australian Newspapers Ltd., [2000] W.A.S.C. 172 (S.C.) at para. 28; Raymond E. Brown, Brown on Defamation, ch.4 at 4-168.

[13]      The law in this area has been most clearly articulated in the Australian case, Mirror Newspapers Ltd. v. Harrison [1982] HCA 50; (1982) 149 C.L.R. 293, per Mason J. at pp. 300-01:

The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally be a jury, and that not infrequently the person charged is acquitted.

A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It’s one thing to say that a statement is capable of bearing an imputation of defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition.

The Court then went on to find that it was possible that the words of complained of had a defamatory meaning and therefore the lawsuit should be allowed to continue.  The question of whether the words actually conveyed those meanings, on the other hand, is a question of fact that should not be decided on the preliminary motion that the Crown brought.

Conclusion

Accurately reporting that someone was charged with a crime is permissible.  (Even if legally defensible, the practice of “naming and shaming” raises serious journalistic ethical issues.  See: Dark Consequences of Naming and Shaming  and When accused sex-criminals are exonerated, the media too often goes silent. for a discussion of the broader ethical issues.)  Caution should be taken when reporting background information to avoid the implication that the person charged is actually guilty of committing the crime.