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:
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:
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:
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.