What they wish they knew before publishing

Never underestimate the risks

I have defended various kinds of professionals who have found themselves on the wrong side of a defamation action.  So often, my clients had a genuine need to voice criticisms of a person or company.  Other times, it was just too darn easy for them to publish their own piece on social media, or to endorse and hyperlink to the defamatory words of others.

My clients often express to me that they wish they had known at the time of the publishing what would be involved in proving fair comment or truth, and the technicalities of these defences.  Others wished that they had limited the scope of their publication so that they could better rely on the defence of qualified privilege, or even absolute privilege.

Often, my clients express to me that they wish they appreciated at the time of publishing how relentless the potential plaintiff would be in pursuing his or her claim.  A tenacious plaintiff often believes that the publisher acted maliciously and ruined his or her life or business and believes, even where the objective facts suggest otherwise, that there is no truth to what has been said. This mindset can hamper resolution attempts and increase the likelihood of the matter going to trial.

Fortunately, this technical area of the law has an ever expanding set of cards to play to successfully defend or dismiss a defamation claim.  For instance, in recent years the jurisprudence has opened the door to certain kinds of defamation claims being dismissed by way of summary trial.  There are also strict pleadings rules which can greatly assist a defendant in striking part or all of a defamation claim.

However, why not stop for a moment and talk about how such claims can be avoided in the first place.  Although I enjoy developing a relationship with my clients, advocating for their free speech, and defending them through the fight, I appreciate that all in all they would be happier if they had never required my litigation services.

This discussion demonstrates that much can be gained by obtaining risk management legal advice, prior to publishing, regarding the words and appropriate forum to use.  Such advice can save you from the time, expense and energy required to defend a defamation claim.

The meaning defended is not the meaning intended by the author

A publisher rarely appreciates that the meanings and innuendoes which will have to be defended are not the meanings and innuendoes that he or she intended to convey or believed were being conveyed.  If a defamation action is commenced, counsel will fight over the meanings of the words published.  Plaintiff’s counsel will plead and argue throughout that the most ghastly and horrendous meanings were conveyed, whilst defence counsel will seek to minimize or deny any defamatory meaning.  Advocacy can be compelling in this regard given the subjectivity in determining meanings.  This subjectivity is evident by the fact that our trial court and appellate court often disagree on what the words conveyed in their context.

When considering meaning, the Court will not consider what you meant to say, but rather will look at the words conveyed, consider the context, and then arrive at a meaning which the Court believes a reasonable and ordinary reader or listener would take from the statement.  Although you may testify on what you intended to convey to answer to allegations that you published with malice, the Court will not consider your own intended meaning when ruling on the meaning in fact conveyed.

The Court’s determination of meaning and innuendoes will set the stage for the success or failure of the truth and fair comment defences.

The limits of truth

The defence of truth (formerly referred to as “justification”) can provide a full defence to a claim in defamation.  To succeed, the truth of every injurious imputation which the trier of fact finds to be conveyed by the publication must be proven on a balance of probabilities to be true.  The Court will focus on the sting of the defamatory imputations, and whether the various stings are substantially true.

There are great risks in pleading truth where there is no evidence to support it.  The failure to successfully prove facts pled to be true in a defamation action could encourage a finding of malice, which would defeat the fair comment and qualified privilege defences, and could result in aggravated and punitive damages being awarded to the plaintiff.

“Fair comment” is not as easy as it sounds

So often I hear my clients insist when first retaining me that what was said was “fair comment”, without appreciating what is involved in successfully relying on this defence.  To defend a statement as fair comment, one must meet the following stringent requirements: the comment must be on a matter of public interest; it must be a comment based on provable facts that are either stated with the publication or are otherwise known to the reader (such as being notorious); the comment, though it can include inferences of fact, must be recognizable as comment as opposed to a statement of fact; the comment must satisfy the following objective test: could any man honestly express that opinion on the proven facts; and, the defendant must not have acted with malice. [i]

Hence, the defamatory words must be recognizable to the ordinary reader as comment upon true facts, and not a bare declaration of facts.  A comment contains an element of subjectivity and is capable of proof, whereas a statement of fact is capable of being determined to be accurate or not.  An inference or deduction from facts may properly be regarded as comment, but an implication is regarded as a statement of facts.[ii]  The difficulty is that the point at which criticism ends and accusation begins is not always easy to distinguish and the line between them can be, and frequently is, very tenuous.[iii]  If the statement of fact and comment cannot be distinguished, the defence of fair comment is not available.  The trial and appellate court often struggle and disagree with whether a statement is a statement of fact or a comment.

In most cases where the defence of fair comment is successful, the facts on which the comment is based are clearly stated in the publication, and the opinion is expressed in a way that makes it clear that the opinion is an inference or a deduction based on the stated facts.

There must be sufficient facts that were either stated with the publication or known to the reader, which can be proven as true to support the comment.  A defendant only has to prove sufficient facts to convince the Court that anyone could have honestly expressed the defamatory comment, regardless of whether the inference or conclusion was fair and whether he or she had an honest belief in the comments.[iv]  It at times is difficult to establish that the facts relied upon to support the comment were notorious or otherwise known to the reader.

One could write a whole paper on the various challenges to the fair comment defence, and as such I set out above the more common challenges.

Limitations of qualified privilege

As noted above, there is often a real need to share a concern.  There are certain occasions in which a person can publish, in good faith, defamatory statements which turn out to be potentially untrue. Such an occasion of qualified privilege arises where: (i) persons of ordinary intelligence and moral principle would have felt a duty to communicate the information in the circumstances; and (ii) the information was conveyed only to the recipients who had an interest in receiving the communication.  This reciprocity of interest is essential as this defence will fail where some of the recipients did not have an interest in receiving the communications.

A beautiful characteristic of this defence is that it protects all kinds of personalities.  The Court is required to take the defendant as it finds them, “according to their temperament, their training, their intelligence,” and to recognize that some people “rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of conclusions that they reach.”[v] If an occasion of qualified privilege arises “he will be protected, even though his language should be violent or excessively strong, if, having regards to all the circumstances of the case, [h]e might have honestly and on reasonable grounds believed that what [h]e wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.”[vi]

This defence does not mix well with the Internet.  When publishing on a website, you are publishing to the world.[vii]  It does not matter if you believe that the website on which you publish would only attract readers who would have an interest in the matter.  Unless you are publishing to a website which requires you to log in, and your post can only be seen by members who would have an interest in the matter, you should assume unless advised otherwise by a lawyer experienced in the area that an occasion of qualified privilege does not arise.

Before publishing on the assumption that you have an occasion of qualified privilege, you should also consider the potential need to demonstrate that you did not publish with malice.  A finding of malice defeats the qualified privilege defence.  Examples of circumstances where the Court will find that a publisher acted with malice include: where the publisher had a reckless indifference to whether what was being published was true or false; where the dominant purpose of publishing was to cause injury because of spite or animosity; or where the dominant purpose in publishing was another improper motive.  Allegations of malice lead to extensive discovery on all prior dealings with the plaintiff.  Even dealings with the plaintiff that occurred subsequent to the publication can be offered into evidence and potentially relied upon as extrinsic evidence of malice.  Often, organizations can choose who delivers the message.  If such choices are available, it is beneficial to have the messenger be the one who had the least dealings with the potential plaintiff so as to avoid extensive discovery on the malice issue.

Qualified privilege can be a vital defence when one is responding to attack.  Care must be taken to, among other things, ensure that you are responding to the same audience who heard the attack and that your response is limited to what is germane and appropriate to the occasion.[viii]

Responsible communication

In 2009, the Supreme Court of Canada recognized that the threshold for meeting the qualified privilege defence when publishing to the general public remained very high and that the criteria for reciprocal duty and interest remained unclear.[ix]  Rather than working within the constraints of the qualified privilege duty and interest analysis, the Supreme Court of Canada instead formulated a new defence of responsible communication.  This defences focuses on the concept of public interest and responsibility for mass media communications.  Responsible communications is a type of privilege which involves close scrutiny of the facts of the particular case.  With this defence, it is not so much an occasion that is privileged, but the publication itself.

The defence applies where a defamatory statement, first, relates to a subject of public interest, and second, meets various requirements concerning whether the defamatory statements have been responsibly verified before a publication.  This defence is primarily available to journalists but can be used by bloggers and other publishers if they meet the requirements of responsible verification.

Whether the defence will succeed will depend upon the Court’s analysis of several factors, including: the seriousness of the allegation; the public importance of the matter; the urgency in getting the message out; the status and reliability of the sources; whether the plaintiff’s side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; and whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth.

Hence, to rely on this defence, one really needs to show that he or she diligently investigated the matter and if possible sought the plaintiff’s side of the story before publishing.

Absolute privilege when reporting others

When someone makes a complaint to the police, or makes a complaint about a professional to a professional regulatory body, or files pleadings or provides testimony, he or she can do so within the sanctity of absolute privilege, provided that certain safeguards are taken.

The defence of absolute privilege exists to protect the functioning of the judicial and quasi-judicial process and to encourage individuals to participate in the judicial or quasi-judicial process without fear of exposing themselves to civil action.

An occasion of absolute privilege exists if the purpose of the communication is sufficiently related to, or necessary for, the judicial or quasi-judicial proceedings.  Hence, a letter initiating a complaint, correspondence to and from, or testimony given in relation to the proceeding, would be protected.  However, the protection of absolute privilege does not extend outside of the proceedings, and as such, discussing or republishing the complaint, submissions or evidence outside of the proceeding, will not be protected by this defence.

The privileged occasion of absolute privilege exists even if the complaint is found to be without merit and is dismissed at an early stage; this is because the purpose of the immunity would be undermined if absolute privilege only applied where the complaint leads to a successful proceeding.[x]

An occasion of absolute privilege only exists where the body or society to whom the complaint is made is quasi-judicial in nature as opposed to merely administrative.  Hence, in Sussman v. Eales[xi], the Court found that the manager of a nursing home was protected by an occasion of absolute privilege when making a complaint about a dentist to the Royal College of Dental Surgeons, but was not protected by an occasion of absolute privilege when forwarding a copy of the complaint to the Waterloo-Wellington Dental Society.

Publications that are not necessary to further the judicial or quasi-judicial process may in some cases be protected by an alternative defence of qualified privilege.

It is therefore essential when making a complaint to the police or to a regulatory body, or providing evidence to further a complaint, that one ensures that the communication is made only to the appropriate judicial or quasi-judicial body, and that is not copied to disinterested parties.  When in doubt, before bringing your complaint seek risk management legal advice to ensure that you can report within the protection provided by absolute privilege.

It does not matter that the words were not your own

There is a general rule that a publisher is not liable for their words being republished by a third party if the publisher did not authorize or intend for the republication to be made.  There are exceptions to this general rule of which to be aware.  Such exceptions include where the publisher implicitly or explicitly authorizes someone to communicate the defamatory remark to another, or where the republication was the natural and probable consequence.  These exceptions only apply and result in liability for the republication of your words by another person where the substance of the defamatory statement is the same, or substantially similar to your original publication.

Most recognize that if they speak to a journalist, or send a message with an invitation that it can be shared with others, that they are liable for the resulting publication by the journalist or words republished in accordance with their invitation.

The Internet also opens up a whole new area of potential liability, namely the potential for Facebook page operators, website operators and Internet service providers to be liable for postings made by third parties on their Facebook page or website.  Taking into account the basic principles of libel law in Canada, and recent decisions involving Internet defamation,[xii] one can be liable for defamatory statements posted by third parties if the provider knew of the publication or ought to have known of the publication by the third party but failed to remove it.  At issue in such cases is whether the Facebook owner or website operator was an innocent disseminator.

Hence, if you have a website or a social media account, beware that you are also liable for the publications of others which appear on your site once you have knowledge of the defamatory publication but fail to remove it.

Be careful what you hyperlink to.  While the simple act of hyperlinking to a website that contains defamatory material is insufficient for liability to arise for any defamatory publication at the hyperlink, liability will arise if the hyperlinking is done in a way that includes an adoption or endorsement of the defamatory content of the hyperlink.  The Court will consider the words published with the hyperlink, as well as whether the hyperlink was to a “deep link” directly to the defamatory words, or to a shallow link to the home page of the website hosting the defamatory statement deep within its site.[xiii]

Managing your risk

As evident above, the defences to defamation claims each have their own technicalities and limits.

Given the time and energy that goes into defending a defamation claim, and the potential steep financial and reputational risks that losing a defamation lawsuit can bring, we recommend consulting a lawyer before publishing potentially defamatory materials.  With proper risk management legal advice, you can limit your risks by more carefully conveying your message, ensuring that only those who have an interest in the matter hear your concerns and, depending on which defence you may be relying on, ensuring that the necessary factual foundation to support your statement is present.

Defending defamation claims can be very costly.  Appropriate insurance coverage for your publications is vital.

For further inquiries on this topic, please contact Karen Zimmer the leader of our Defamation + Public Risk Management Practice.

[i] Simpson v. Mair, 2008 SCC 40

[ii] Kemsley v. Foot, [1952] AC 345 (H.L.)

[iii] Boland v. The Globe and Mail Ltd., [1961] 21 D.L.R. (2d) 401 (Ont. C.A.)

[iv] Simpson v. Mair, 2008 SCC 40

[v] Horrocks v. Lowe, [1974] 1 All E.R. 662 (H.L.)

[vi] Adam v. Ward, [1916-17] All E.R. 157 (H.L.)

[vii] See for example Rubin v. Ross, 2013 SKCA 21

[viii] See for example Wooding v. Little, (1982), 24 C.C.L.T. 37 (B.C.S.C.); Ward v. Clark 2001 BCCA 724; Tucker v. Douglas, [1952] 1 S.C.R. 275

[ix] Grant v. Torstar Corp., 2009 SCC 275; Quan v. Cusson, 2009 SCC 62

[x] Hung v. Gardiner, 2003 BCCA 257

[xi] Sussman v. Eales, (1985) 33 CCLT 156; rev’d in (1986) 25 CPC (2d) 7 (Ont. C.A.)

[xii] Weaver v. Corcoran, 2015 BCSC 165; Pritchard v. Van Nes, 2016 BCSC 686; Carter v. B.C. Federation of Foster Parents Assn. (2003), 27 B.C.L.R. (4th) 123 (B.C.C.A.); 42 B.C.L.R. (4th) 1 (B.C.C.A.).  The latter case was the first Canadian case addressing this issue in the internet realm.  Our firm was counsel for the Defendant, B.C. Federation of Foster Parents Association.

[xiii] Crookes v. Newton, 2011 SCC 47

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