Do I have a defamation claim?
To succeed in a claim for defamation you must show:
1) That the words were communicated to at least one person other than yourself;
2) That the words referred to you;
3) That the words would tend to lower your reputation in the eyes of a reasonable person.
If you can prove these three elements, it is presumed you’ve suffered damage to your reputation. The burden then shifts to the defendant to provide a valid defence.
Does the defendant have a defence to the defamation?
The most common defences[1] to defamation are:
1) Truth/Justification: True statements are not defamatory. For this defence to succeed, the defendant must prove on a balance of probabilities that the impugned words were true in substance and fact.
2) Qualified Privilege: Certain occasions give rise to qualified privilege. The defendant must show there is a reciprocal relationship where they had a duty to make the statements and there was a corresponding duty for the person receiving the statements to receive them.
An example: A nurse writes something defamatory in a patient’s chart that is to be provided to a doctor. The nurse has a duty to report to the doctor about a patient and the doctor has a corresponding duty to receive that information. This occasion gives rise to qualified privilege.
Complaints to police are also made on occasion of qualified privilege.
However, the defence is defeated if:
a. The defendant shared the defamatory comment with individuals beyond those who have a duty to receive it. For example, if an employer confronts an employee with defamatory misconduct allegations, it is subject to qualified privilege. However, if the employer does so in front of other employees with no direct interest in the allegations, the scope of the privilege is exceeded.
b. The defendant makes defamatory statements that are irrelevant to the purposes of the privileged occasion. For example, if a defendant was requested to respond to an inquiry related to a particular subject, the response is subject to qualified privilege. However, if the defendant took the opportunity to make defamatory statements about the plaintiff regarding unrelated matters, this exceeds the scope of privilege.
3) Fair Comment on a Matter of Public Interest: This defence is based on the idea that you are entitled to express your opinion on matters that affect people at large (like politics, for example) provided you set out the facts on which you base your opinion.
This defence requires the defendant to prove that the statement was (1) on a matter of public interest; (2) based on fact - and the facts must be true; (3) recognizable as comment; and (4) a comment that could be honestly expressed based on the facts.
4) Absolute Privilege: There are a small set of circ*mstances in which absolute privilege applies and no defamation proceeding can be brought. These include:
a. Statements made during parliamentary proceedings;
b. Statements made within the context of judicial or quasi-judicial proceedings; and
c. A fair and accurate report of court proceedings without any comment.
If the defendant is able to make out any of these defences, the burden shifts back to you, as the plaintiff, to prove malice.
Malice
The defences of qualified privilege and fair comment can be defeated if the communication was made with malice. Malice will arise if:
a. The dominant motive for publication of the statements was spite or ill will;
b. The dominant motive for publication of the statements was to further some ulterior motive (for example: a business owner tells authorities that a competing business is engaging in illegal activity in the hopes of having the competing business shut down); or
c. The statements were made dishonestly or in knowing or reckless disregard for the truth.
Limitations Issues
In Alberta suits must be brought within two years of you becoming aware of the defamation. If the defamation is by a newspaper or broadcaster, then you must give notice of your intent to sue within three months of becoming aware of the defamation. If your matter exceeds those limitations periods, you are unable to bring an action.
Is it worth pursuing my defamation claim?
There are three big problems with defamation cases:
- First, by pursuing a claim, and in particular if you sue, you often cause the defamation to be republished and it reaches a broader audience than the original defamatory publication. It has the effect of reminding people of events that are largely forgotten;
- Second, fighting any lawsuit is expensive and time consuming, and defamation actions are no different. If the matter doesn’t resolve with a quick retraction/apology, fees are typically in the tens of thousands of dollars before you even get to trial, and would likely exceed $100,000 to get through even a short trial;
- Third, if you win, the damages awarded in Canada tend to be relatively low, unless there are provable lost income damages. Given the many factors that can affect someone’s income, it is generally difficult to prove an income loss is attributable to defamation. Typically, your legal fees will significantly exceed what you recover in any defamation action, so both the plaintiff and defendant will lose no matter who wins the lawsuit.
There are other issues (for example: if you lose, you will likely be ordered to pay a portion of the defence costs. If you win you can get money but the Court can’t order an apology and you have to factor in all of your time in pursuing an Action over a number of years), but those are the big issues.
Can I have counsel write a “cease and desist” demand letter?
Often clients want counsel to write a demand letter to get a quick apology or at least to get the potential defendant to stop the defamation. The problem with that is:
a. To be effective the demand letter should threaten to sue;
b. Some defendants will ignore the letter. If you then fail to sue, the defendant may be emboldened by the empty threat, and the defamation will get worse;
c. Alternatively, some defendants will use the letter as further fodder for their defamation by posting it online with commentary like: “Look, now she is threatening to sue me!”
For that reason, we rarely recommend that a letter be sent unless you are prepared to follow through with a lawsuit.
About the Author
Andrea MacLean is an associate at JSS Barristers whose practice focuses on defamation. She has experience handling a wide range of matters and representing both plaintiffs and defendants. If you believe you have a defamation claim, please contact Andrea at [email protected] or 403-571-1509.
[1] There are other defences, but these are the most common.
