Written by: Alfonso Chen
Widespread defamation can have very serious and long-lasting effects on innocent targets. For example, a saleswoman’s well-deserved and hard-earned reputation of being altruistic, easy-to-approach and caring towards clients can be eroded with a baseless false story virally spread through social media about that person’s pattern of disregard of clients’ interests. The target may suffer from significant mental anguish, among other consequences, after the defamatory statements are published.
On the other hand, people should be entitled to freely publish statements in many cases without fear of becoming liable for publishing them. For example, a former employer stating to a potential employer that the subject employee was often late for work, when the employee was indeed always late for work while working for the former employer, may rely on defences so as not to be held liable for defamation arising from the publication.
This article sets out the basic elements of defamation and a few defences available for an alleged defamer and is current as of August of 2019.
The Elements of Defamation
There are three basic elements that a person suing for defamation must prove. All three elements must exist for there to be defamation.
First, the statement alleged to be defamatory must refer to the party complaining that it was about that party. For example, the first element could be satisfied if the recipient of the statement can identify the statement to be about the complaining party, even if the statement excludes any mention of the complaining party’s name.
- Third Party
Second, the defamatory statements must be communicated to third parties or a third party other than the alleged defamer and the complaining party. In other words, the statements must have been sent in comprehensible form and received and understood by a third party or by third parties. Publication does not need to be widespread.
Third, the statement must be defamatory in that it decreases a right-thinking member of society’s estimation of the subject. For example, stating to an auditor’s clients that the auditor has a pattern of consistently producing poor work in her or his capacity as an auditor, when the serious allegation is not true in any way, would satisfy the third element. Negative innuendos where external circumstances shed light to the actual meaning may satisfy the third element.
Who proves truth/falsity?
It is unnecessary for the complaining party to prove that the statements were false in order for the court to find that there was defamation. Instead, the alleged defamer can try to prove that the statements were true in order to not be liable for the defamation by relying on the defence of truth.
Including the defence of truth, otherwise known as the justification defence, there are several defences available to alleged defamers. If any of the defences to defamation are successfully established and accepted by the court, then the alleged defamer would not be held liable by that court for defamation for making the subject statements alleged to be defamatory. Two of the more common defences are set out below.
Truth is an absolute defence to defamation. The statements do not have to be true in every sense for this defence to be made out. The court may find that the sting of the comments are true to be satisfied that the defence is made out. For example, if Elizabeth states to a third party that Jack was convicted of stealing 23 chairs from the local public library when in fact Jack was convicted of stealing 22 chairs from the local public library, then Elizabeth can very likely rely on the defence of truth.
- Qualified Privilege
There is a defence of qualified privilege available where the alleged defamer has a legal or social or moral duty to publish the statements to another who has a corresponding legitimate interest in receiving the statement and where the alleged defamer does not publish statements with malice. For example, if Kate obtains information from a few highly reliable sources stating that Wilson plans to carry out a terrorist attack at an event at the local mall tomorrow at 3:00 p.m., then Kate can likely rely on the defence of qualified privilege if she, without malice, spreads the information to those planning to attend the event.
There are other defences, including:
- responsible communication on a matter of public interest;
- fair comment; and
- absolute privilege.
Your reputation can be unjustifiably and irreversibly damaged if someone makes defamatory statements about you. However, to possibly obtain compensation from B.C. courts, you would need to prove the three elements of defamation and adequately refute the defences raised by the defendant or the defendants.
As someone who has been alleged to have defamed another, you should be prepared to establish that defamation has not been made out or that one or many of the defences apply to your case.
Alfonso Chen is a litigation associate of Henderson & Lee who often handles defamation files and developed a particular interest in defamation law while in law school. His practice mainly involves civil litigation and criminal defence matters.