Articles about Defamation Law

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.

Introduction

In the first step of a defamation lawsuit the plaintiff must prove three things:

  1. 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.
  2. That the defendant’s words referred to the plaintiff.
  3. 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).

Conclusion

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.

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The defence of fair comment allows for the free expression of opinions on matters of public interest.

By Pete O'Shea [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Defaming someone in a publication may be allowed by the courts if it’s in the public interest and the author was diligent in their reporting.

https://www.flickr.com/photos/cutiemoo/3111207407/in/photolist-5JVKz2-4wYqHp-64QeX1-nQGynk-4wYuun-4x3Ezu-4y63jV-cNUTPW-7qHgcj-5bmdB7-a5FMNo-cvuSr-9J5K2z-2gm67s-hnvZg-dfYFfL-vSRjF-vjTfRe-eXcx29-aTZfAe-vuaqP-aTZfh2-2ZxtZm-drB6y-hTNeHj-cERdho-5Msngx-4pxv9k-aT7VoV-9u5uyM-7C1d2f-dYX6Xg-bvWwvd-9AbU4F-bvWwfS-bJRgSZ-bJRjqR-bvWxPN-bvWxxQ-aTZfbZ-aTyFjg-aTyFWM-2Zxswy-2ZsWm4-7tVtRj-8Kp5Fu-72nVwg-bvWurj-bJRn7X-bJRmap

Ontario has an anti-SLAPP law intended to encourage expression and debate on matters of public interest, by discouraging meritless lawsuits meant to stifle that expression.

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Defamation Lawyer, Gil Zvulony successfully defended an Anti-SLAPP motion for his client. The case involved postings about a real estate agent on WeChat.

An Anti-SLAPP motion seeks to have a legal proceeding dismissed because it is a proceeding that limits freedom of expression on a matter of public interest (Gag Proceeding). Mr. Zvulony was one of the first to test Ontario’s anti-SLAPP legislation in the courts in another case.

The full day motion was argued virtually using Zoom. The judge found in favour of Mr. Zvulony’s client and dismissed the Anti-SLAPP motion.

In his judgment, the judge thanked Mr. Zvulony for the superb quality of his oral and written submissions. The case can be found here: Niu v. Cao, 2020 ONSC 5407 (CanLII), <http://canlii.ca/t/j9kt8>

DISCLAIMER: This description is intended only to provide information about the activities and experience of our lawyers and should not be understood as a guarantee or assurance of future success in any matter. 

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Toronto Internet lawyer discusses the law with respect to online pranks and challenges.

Toronto Defamation lawyer Gil Zvulony spoke recently with the national media about Prime Minister Justin Trudeau’s threat of defamation proceedings against opposition leader Andrew Scheer. Mr. Zvulony believes that Trudeau faces an “uphill battle” in court and that a defamation lawsuit in Ontario would likely get dismissed under Ontario’s Anti-Gag Proceedings law.

A video Clip with the CBC is below.

The interview with the Post Millennial can be found here:


Trudeau risks more by suing Scheer: defamation expert

Trudeau takes big risk, for faint hope at winning libel suit against Scheer: defamation expert

Toronto lawyer and defamation expert Gil Zvulony says Prime Minister Justin Trudeau’s threat to sue Conservative leader Andrew Scheer over comments he made about the PM’s conduct involving ex-attorney general Jody Wilson-Raybould is “a bad move”.

By Blogtrepreneur (Legal Gavel & Closed Law Book) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Gag Proceeding Dismissed

Toronto Defamation Lawyer Gil Zvulony successfully represented his client in the Ontario Court of Appeal, in a precedent setting case that was one of the first to test Ontario’s anti-SLAPP legislation (Strategic Lawsuit Against Public Participation) in the courts. A good background on the case was published by Maclean’s magazine at the time of the lower court decision: How a Real Estate Developer’s Efforts to Silence a Critic Failed. That article described the dispute as “a defamation lawsuit filed by a Goliath of the syndicated mortgage industry against a veritable David of real estate analysts.”

The  Court of Appeal sided with Mr. Zvulony’s client and agreed that the lawsuit should be dismissed under the new law. The Court found that “this lawsuit had the strong indicia of a true SLAPP.” The Court found that the “contract” being sued on, a contract that sought to silence Mr. Zvulony’s client from speaking about the defendants, would not be enforced as it unduly interfered with Mr. Rabidoux’s right to express himself on matters of public interest. It is one of the few Canadian decisions to examine the enforceability of a “contract of silence”.

In addition to having the lawsuit dismissed Mr. Zvulony’s client was awarded his full indemnity costs in the lower court and his costs of the appeal.

  • Court of Appeal Decision: Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686 (CanLII), <http://canlii.ca/t/htqb7>
  • Lower Court Decision: Fortress Real Developments Inc. v Rabidoux, 2017 ONSC 167 (CanLII), <http://canlii.ca/t/gwt81>

DISCLAIMER: This description is intended only to provide information about the activities and experience of our lawyers and should not be understood as a guarantee or assurance of future success in any matter. 

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What are the legal repercussions when someone is the subject of a false and damaging statement in the workplace. Are there any special considerations that apply to the workplace?

Toronto Defamation Lawyer Gil Zvulony discussed some of the legal issues in suing Twitter with Canadian Lawyer Magazine.  Gil Zvulony highlighted some of the uncertainties in the law as it relates to the liability of internet intermediaries such as Twitter. The entire article can be found here: Warren Kinsella settles claim against Twitter