by James Yousif, Lawyer
Qualified privilege allows an otherwise defamatory publication to escape civil liability, if the person who made the defamatory expression had a duty to communicate, and the person who received it had a corresponding duty to receive the information. It is based upon the idea that there are some things the public needs to know, and that the importance of expressing such knowledge may outweigh the protection of a particular person’s reputation.
In the first step of a defamation lawsuit the plaintiff must prove three things:
- That the words spoken by the defendant were defamatory, in the sense that they would lower the plaintiff’s reputation in the eyes of a reasonable person.
- That the defendant’s words referred to the plaintiff.
- That the words were published, that is, communicated to at least one person other than the plaintiff.
Grant v. Torstar Corp., 2009 SCC 61 at para 28.
When these are established in court, the falsehood of the defamatory words are presumed and damage is also presumed. This way of automatically attributing falsehood and damage is sometimes referred to as “strict liability”. The subjective motives or intentions of the defendant are not relevant at this stage of the analysis. The focus at this stage is upon the words, not the intent.
However, once a prima facie finding of defamation is made, the trial shifts to a consideration of whether one of the legal defences to a defamation finding is available to the defendant. One such defence is “qualified privilege.”
Qualified privilege might also be called the “duty defence”. The defence of qualified privilege permits the publication of otherwise defamatory statements on the basis that the person who said the defamatory words had a duty to say them, and that the person who heard the defamatory words also had a reciprocal duty to hear them. (Hill v. Church of Scientology of Toronto at para. 143. )
Examples of the Defence of Qualified Privilege
Let’s consider some examples, variations of actual cases which have been simplified:
- Physicians are sometimes required by law, and by the rules that govern their profession, to report certain information about their patients to the hospital where they may be working. The doctor has a legal duty to provide the information. The hospital has a legal duty to receive it. If the doctor’s communication included a defamatory component, it may be protected by a finding of qualified privilege.
- An employee has a duty to keep their company informed of the conduct of a fellow employee that might negatively affect the company. Performing that duty may require the employee to communicate something defamatory. The employee has a duty to report, and the company a corresponding interest in receiving that report. A qualified privilege would defend the employee in this circumstance.
- The dean of a professional school may have a duty to post a notice that a student had been suspended while a charge of theft was being investigated. The dean may have a duty to notify the students, and the students a corresponding interest in receiving that information. Any damage to the reputation of the student who was the subject of the notice may be excused as the result of a finding of qualified privilege.
- A qualified privilege may exist for ordinary citizens. A citizen may have a duty to report suspected crimes to law enforcement officers, who have a corresponding duty to receive such information. Citizens should not be afraid of a defamation action when considering whether to call 911.
- Citizens may also have a duty to report a wide variety of other things to various relevant authorities. One example would be a citizen reporting an accountant who is practising without the proper license to the professional regulator of accountants.
- The privilege may also arise in personal relationships. For example, a father may have a duty to complain to relevant authorities about the language and conduct of another student who attends school with his child. The facts he reports may have a defamatory effect. However, both the father and the authorities have a duty to make and receive that communication. The defence of qualified privilege would protect the father if a defamation action was initiated against him.
- Even within a single family, a brother may have a duty to warn his sister about the character of her fiance, and the sister a corresponding interest in receiving that information. If the fiance were to sue the dutiful brother in defamation, the latter may establish the defence of qualified privilege.
Again it is not the words per se that decide the defence. The Supreme Court of Canada has made clear that a qualified privilege attaches to the occasion upon which the communication is made, and not to the words themselves. The context of the expressed words will always be assessed carefully.
Limits of Qualified Privilege: Malice
It was noted earlier that when a court finds a publication to be defamatory, it is presumed to have been made with malice. The defence of qualified privilege works by nullifying the presumption of malice. A finding of qualified privilege locates the defamatory communication within a context of reciprocal duties, recognized by society. That good purpose supplants the imputation of a malicious motive.
While that may be the end of the imputed malice, a finding of actual malice will still defeat a qualified privilege. The Supreme Court defines actual malice as follows:
Malice is commonly understood, in the popular sense, as spite or ill‑will. However, it also includes … “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. … Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.(Hill at para. 145)
Limits of Qualified Privilege: Exceeding the Duty
A qualified privilege will be limited in scope to the duties upon which it is based. The fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Any defamatory words that go beyond the legitimate purpose of the occasion will not be privileged. Words that are not relevant to the duty or interest that gave rise to the qualified privilege are not protected (Hill at para. 146).
Qualified privilege is a common defence to defamation lawsuits. Establishing the defence requires that the occasion upon which defamatory words are published is the result of a duty on the part of the plaintiff to express those words, and a corresponding duty on the part of another person or organization to receive those words.
If the words are determined to have been motivated by an ulterior motive or actual malice, this defence will not succeed. The defence is also not available in the event that the words published go beyond the duty upon which the privilege is based.