Defamation: Where to find the law

BY PASCALE MALENFANT

To begin, though defamation is a province-specific area of the law, many of the rules, tests, and rights journalists ought to know are the same in each province (with the exception of Quebec, where privacy is protected “especially rigorously,” according to Martins).

“Aside from Quebec, in general, most provinces have their own ‘libel and slander’ or ‘defamation act,’ which sets out certain defenses that are available to publishers and broadcasters,” said Martins. This includes, though isn’t limited to, Ontario, British Columbia, Nova Scotia, and Alberta.

“But in general, it’s not really a legislation-focused area of the law,” he added. This means that most of rules that discuss what defamation is, how to determine whether something is defamation and the defences journalists have against defamation are located in something called “case law,” which is a body of law that is developed through judicial decisions in court cases.

“So, when you’re looking at defamation, you have to remember to consider both,” said Martins. “The most important cases that apply to nearly all the provinces are those that come out of the Supreme Court of Canada.”

What is — and isn’t — defamation, and how can I defend myself?

The general definition of defamation comes from Grant v. Torstar, a defamation case heard by the Supreme Court of Canada in 2009. In this case, the plaintiff (Grant) brought an action in defamation against the Toronto Star after an article was published concerning a private golf course Grant intended to build on his lakefront property. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that Grant was using his political influence behind the scenes to secure government approval for the new golf course. 

Most notably, the case reiterated the legal “test” a plaintiff must meet in order to prove they were indeed defamed and thus, deserve compensation (normally in the form of an article retraction and/or money). The three things a plaintiff must prove are: 

• 1. That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 
• 2. That the words in fact referred to the plaintiff (meaning that it must be somewhat obvious to people who hear or see the material must realize that it is the claimant whose reputation has been tarnished); and 
• 3. That the words were published, meaning that they were communicated to at least one person other than the plaintiff. 

If the plaintiff proves these required elements, then it’s on the defendant to advance one of the available defences in order to escape liability.   

Defence #1: Truth

According to Grant v. Torstar, the defence of truth hinges on the assertion that the contested statement is accurate in substance and fact. To successfully make this defence, the journalist (who, in this case, would also be called the defendant) must demonstrate that the defamatory meaning — whether literal or inferred — embedded in the defamatory statement is actually true.

Importantly, proving that a statement was indeed “true” is a viable defence even when the defamatory statement was published with reckless disregard as to whether it was indeed true or not. However, it’s also a difficult one to make out, given some of what journalists report may be closer to opinion than truth (for instance, criticism of others’ actions by a source). Further, proving the truth of one’s reporting is very different in a courtroom than it is in an article, particularly where a trial may take place years after the defamatory statement was published or broadcast.

Defence #2: Fair Comment

Also known as “honest comment on true facts,” this is where a journalist may be able to defend themselves for making an opinionated statement — made by them or a source — that may not be objectively true. It requires proving several elements, which were laid out by the Supreme Court in WIC Radio Ltd. v. Simpson:

1. The comment must be on a matter of public interest. This is a “broad concept” that can encompass a variety of things.
2. The comment must be based on fact. This means that the facts have to be sufficiently stated or otherwise be known to the readers or listeners. If the factual foundation is unstated or unknown — or it turns out to be false — the fair comment defence is not available.
3. The comment, though it can include inferences of fact, must be recognizable as comment. 
4. The comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? Interestingly, this doesn’t mean that the defendant themselves needs to hold that opinion (though it can be helpful in the defence). Instead, it just needs to be a reasonable possibility that a nexus could be drawn between the facts and the opinion.

However, even if the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the journalist was “subjectively actuated by express malice” — meaning that the journalist intentionally and deliberately published the opinion to harm the reputation of the plaintiff. 

Defence #3: Privilege

The word privilege refers to certain occasions when the public interest in free and candid speech trumps the public and private interest in protecting an individual’s reputation. 

One of the most important aspects of this defence is that it protects defamatory errors of fact which are not excused under the defences of justification or fair comment. It specifically applies to instances where the defendant has an interest or a duty — legal, social or moral — to communicate the defamatory expression, and its recipients have a corresponding duty or interest to receive that communication. 

However, the issue is not whether the defendant had a right to make the defamatory statement or thought that they had a duty to make it, but rather whether a reasonable person would feel compelled by a duty to make the communication. This means the defamation must be reasonable from an objective standpoint.

In the defamation context, there are two kinds of privilege: qualified and absolute. The main difference is that in instances of qualified privilege, the defence is lost if the statement was made with the dominant motive of malice (i.e., saying something out of spite, or where you knew the statements were false or were recklessly indifferent as to their truth).

Absolute privilege, however, protects defamatory statements made in very particular contexts even where malice may have been the dominant reason for why you shared them. This may include testimony during a judicial or quasi-judicial proceeding or statements made by politicians in Parliament or a provincial legislature.

Defence #4: Responsible Communication

Last, but certainly not least, is the defence of responsible communication. This relatively new defence was recognized by the Supreme Court in Grant v. Torstar, and protects a defamatory publication on a matter of public interest where the defendant was diligent in trying to verify the truth of the allegation about the plaintiff.  

“No one sues a journalist and says that they’re launching a SLAPP,” said Martins. “It’s a kind of nickname to refer to these problematic legal cases that have more malicious intent behind them than just wanting their day in court.”

In response to a rise of these kinds of lawsuits over the past few decades, some provinces (specifically, Ontario and British Columbia) have implemented explicit “anti-SLAPP” legislation, which permit journalists to ask courts to strike out such suits early on in the litigation where it’s relatively obvious that the purpose behind them is to merely silence a reporter, as opposed to bringing a legitimate claim for libel or slander.

Though each province is slightly different, the overall test remains the same. Looking to the Ontario case of 1704604 Ontario Ltd. v. Pointes Protection Association, the Ontario Court of Appeal explains that a journalist must first establish the “threshold burden” of proving to the judge that the proceeding against them comes from an expression relating to a “matter of public interest” (which, again, is given a broad interpretation). Importantly, it will not be legally relevant whether the expression is “desirable or deleterious,” “valuable or vexatious,” or whether it helps or hampers the public interest — at this stage, all that matters is that it’s in the public interest.

Then, if this threshold burden is met, it’s up to the original plaintiff (i.e., the person bringing the defamation lawsuit) to prove to the judge that:

• 1. There are grounds to believe that their lawsuit has “substantial merit,” and that the defendant has no valid defence to the defamation. This means the proceeding must be supported by legitimate evidence that shows the case has a real prospect of success, and that any of the possible defences (noted above) the journalist could bring would be too far-fetched in the case.
• 2. The harm likely to be (or that has been) suffered and the corresponding public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. This is a balancing exercise that may require the court to consider a number of factors, like the quality and motivation of the expression, the importance of free expression as a overarching principles (like the search for truth, political decision making, etc.), the importance of expression, the history of litigation between the parties, any disproportion between the resources being used in the lawsuit, or the harm caused or the expected damages award.

If either one is not met, the judge will find that the lawsuit is a SLAPP, and will subsequently  dismiss it. However, where both are shown, it will be allowed to go forward — and a full trial will take place to determine whether the journalist committed an act of defamation.

Responding to an accusation of defamation

Knowing your rights is one thing — but how do you enforce them, particularly where someone may be accusing you of defamation?

First, said Martins, it’s important not to panic. “I would say that three-quarters of defamation threats — or even lawsuits — that I see never go beyond the threat stage. People might feel they’re inaccurately portrayed in the media, and may get a lawyer to send you some kind of threat so they can tell everyone else in the world they’re pursuing something, even if they’re really not.”

However, Martins nevertheless cautioned young journalists to take threats of defamation seriously from the get-go, and to keep in mind that what they say and do could make their lives more difficult later on if a full lawsuit is launched by a plaintiff.

“You’re journalists, right? So you want to get it right — and if you got it wrong, and it’s obvious you got it wrong, you should fix it,” he said. “But if you’re in a situation where you’re asking, well, how wrong is it? That’s where things get more complicated.”

“Really, you should consult a lawyer before doing anything. Unless there’s a really, really clear defence in your situation, you should talk to a professional before you say something that may prejudice your case, and make it difficult to win down the line.”

Responding to a suit: The process

Though each lawsuit may be different — and each province has its own rules related to legal procedure — most defamation cases will follow a similar series of events.

After notice is given (in those provinces that require it) and a lawsuit is filed, if the case isn’t settled from the get-go, a defendant will have a certain number of days to file their defence with the court. Failing to do so may result in a default judgment, where the court assumes you admit to the claims made against you and the party suing you can ask the court to order you to pay the claim in full. 

Afterwards, some provinces (like Ontario) will require the parties to partake in mandatory mediation, where a neutral third party will attempt to help the parties come to an agreement or settlement outside of the court process.

Should mediation fail, the parties will generally be expected to partake in something called examinations for discovery. This is where the parties can exchange information about their evidence before going to trial, such as documents, and also permits pre-trial questioning of the other side under oath. In this process, both parties are generally required to voluntarily disclose all relevant evidence. Failing to do so can carry serious consequences.

After discovery, the parties request a court date through a process called setting down for trial. This will require putting together a trial record (which includes all the arguments and evidence you intend to bring up during the trial), and serve it to both the court and the other party.

“It’s also almost always the case that the journalist will be questioned on the stand during the trial,” said Martins. “That’s because most of the defences for defamation require journalists to be accountable to their work, and to explain why what they did was reasonable and responsible.”

After the court makes its decision, the parties can either accept the ruling and pay whatever costs or damages were ordered (often, a successful party to litigation will be entitled to costs payable by the unsuccessful party) or appeal the case to the next highest court. 

Responding to a suit: Getting the help you need

It goes without saying that lawyers aren’t often easy to come by — particularly for a student newspaper or journalist low on financial resources. However, there are a number of resources students may be able to tap into when in need:

• Canadian University Press: Student newspapers can pay an annual fee (based on the publication’s size) to maintain membership with the Canadian University Press. This membership covers the first hour of legal costs for the newspaper each year.
• Canadian Media Lawyers Association: The CMLA lists a number of qualified media and defamation experts in each Canadian jurisdiction, many of which provide pro bono and low bono legal services to independent media and student journalists. However, student journalists looking for guidance should contact the CMLA at its main directory email, where they will send the request out to its members in the relevant jurisdiction to see if anyone has the time and ability to assist with the file. 
• Canadian Association of Journalists: CAJ boasts a long history of supporting journalists advocating for their rights, and may be able to help with finding and funding representation.
• Rory Peck Trust: This fund supports freelance journalists and can be used to support legal fees.