DEFAMATION

1. DEFAMATION • Unlike most of tort law, defamation has little to do with protecting individual or communal security. Nor is it based on “fault” or “wrongful conduct” as in negligence and some other types of torts. • What the law of defamation seeks to protect is the REPUTATION of individuals against FALSE and UNJUSTIFIED attacks. The core objective of the law of defamation is to protect individual Hill v Church of Scientology reputation. As the SC noted in, “a good reputation is closely related to the innate worthiness and dignity of the individual. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre.”

2. Origins of the law of Defamation • Historically, all societies have frowned on those who make false allegations against other members of society. • The Quran, Bible, Talmud, and other ancient religious texts all forbid making false allegations. • Ancient Romanic and Teutonic laws all forbade slanderous words and punished those who made them. • The law of defamation by mulcting in damages those who purvey false and unjustified attacks on personal or corporate reputation serves a deterrent purpose.

3. Common law Origins of law of defamation • The modern law of libel arose from the Case de libellis Famosis of 1605 where the Archbishop of Canterbury was alleged to have been traduced and scandalized by an anonymous person. • It was in 1670 that the law of defamation made a distinction between libel and slander.

4. Libel vs. Slander • “Defamation is committed when the dft publishes to a third person words of matter containing an untrue imputation against the reputation of the claimant.” [emphasis mine] see Gatley on Libel & Slander at 7. • Libel refers to those false imputations against the dfts reputation published in a permanent form (eg, printing by way of signs, pictures, writing, films, statues, films) or is broadcast or is part of a theatrical performance. It is actionable per se, even without proof of damage. see Libel and Slander Act of Ontario. • Slander refers to oral pronouncements that are false and disparaging. It is only actionable on proof of damage which must be pleaded and proved. There are however, four classes of slanderous statements that are actionable per se. We shall deal with those categories later.

5. Constitutive Elements of Libel • Plaintiff must prove the following: • That the material complained of was defamatory • That the material referred to him/her (the plaintiff); • That the material was published.

6. Defamatory Imputations • Before discussing the forms of publication, let us examine the nature of defamatory imputations in libel. • As already noted, the gist of the torts of libel and slander is the publication of matter conveying a defamatory imputation. • In determining whether the material complained of is defamatory, there are two distinct stages, first to decide what they “impute”, and then to decide whether that “imputation” is defamatory.

7. “Imputation” v “Meaning” • In the law and practice of defamation, the word “imputation” is to be preferred to “meaning” since extrinsic facts, whether or not they are generally known, may give rise to implications which go beyond the “meaning” of the words in their ordinary sense. • How is a defamatory material to be defined?

8. What is Defamatory? • There is no universal test for judging whether the words or material in issue is defamatory of a ptf. Scholars and jurists have for centuries struggled to find a definition that has a logical definition. • The usual test, however, is “whether the words complained of are calculated to injure the reputation of another by exposing him/her to hatred, contempt or ridicule.”

9. Examples of Defamation • The following words used against the respective ptfs have been held to be defamatory: • Elizabeth French v. Smith [1923] 3 D.L.R. 904“…five fellows took Elizabeth behind the church and screwed her.” • Penton v. Caldwell, “he is a liar.” • Pandolfo’s case, “he is a crook” • Grassi’s case, “he is a child molester” • Berkoff’s case, “he is hideously ugly.”

10. What is Defamatory Material? • A popular test is whether the words complained of “lowers a person in the estimation of right-thinking members of society generally.” • Arguably, the closest to a comprehensive definition is that adopted by the American Law Institute in the Second Restatement of Torts: • “a statement is defamatory if it tends to harm the reputation of another so as to lower him/her in the estimation of the community or to deter third parties from associating or dealing with him/her”.

11. What is Defamatory Material? • The common feature among all the definitions of defamatory material is that they look to the “likely effect of the words/material upon the view taken of the claimant by others.” • For this purpose some standard of opinion has to be set and it is that of “right thinking persons generally.” The usual standard of measurement in defamation is said to be that of “right-thinking members of society generally.”

12. ‘Right-Thinking’ • The words “right-thinking” is ill-defined and could yield unjust or absurd results. • The test for defamation is not based on polls; it is often based on what the relevant segment of society thinks of the ptf, provided, that relevant segment of society is not anti-social. For e.g, to say that a mafioso is not a “made-man” may diminish his standing among his fellow criminals and yet there is no cause of action.

13. Objective or Subjective test? • Jurists insist that the standard is an objective one, and the yardstick is that of thoughtful, informed and balanced persons. • The key task is to decide whether the words/material are capable of being defamatory. • This task is often performed in the particular context of the ptf vis-à-vis the listeners. • Objectivity is sometimes modified to suit the context in which the words were uttered and with regard to prevailing notions of what type of utterances lower a person’s reputation, or tarnish his/her image or exposes him/her to hatred or spite. • For example, a statement that a person is ugly may be defamatory of a person to whose occupation appearance is relevant while it may not be of another.

14. Society and defamation • Similarly, it is arguable that words which may in a different age be considered defamatory may with passage of time lose their defamatory sting. • It is the current, general usage of a word which should be looked to in determining meaning and imputation. Thus, for example, the primary popular meaning of “gay” is now homosexual, not bright and cheerful, but this would not have been so fifty years ago. • Slangs and colloquial terms are specially prone to layered or evolved meanings. What is a “geek”?

15. Precedents and Defamation • Judicial precedents are of limited value in construing defamatory imputations. • For example, in Nowark v. Savage, and Buck v. Savage, ptfs were respectively called homosexuals. Dfts were held liable. With increasing acceptance of homosexuality and other forms of human sexuality as a legitimate expression of diverse human sexuality, courts may have to (re)examine social attitudes before finding liability. • Similarly, it is doubtful whether an imputation of someone as a communist held to be defamatory in Dennison v. Sanderson, would have the same meaning in current times.

16. Locale and Defamation • Local contexts and value systems may also impact on imputations. For example, to call someone a “wife-swapper” (Hunter’s case), may not be defamatory in country’s or provinces where wife-swapping is an acceptable social practice devoid of negative moral judgments. • Similarly, in segregated Louisiana, to call a white man a “coloured gentleman” (although the newspaper retracted the publication and declared him to be of “the purest Caucasian race”) was held to be defamatory in Louisiana.

17. Defamation • Words are not defamatory merely because their publication has a damaging effect on the claimant’s reputation; THERE HAS TO BE A STATEMENT OF FACT OR EXPRESSION OF OPINION OR IMPUTATION conveyed on them which will have this effect. • To be defamatory, an imputation need have no factual effect of a person’s reputation, rather, the law looks only to its TENDENCY. A cause of action in defamation may arise even if the words were not believed by the audience. • However, the position would be different where the nature of the charge is so preposterous that no reasonable person would believe it.

18. Ridicule and Hatred • Any imputation which may tend to cause a person to be hated or despised is defamatory. • However, imputations which expose a person to ridicule is more problematic. The difficulty stems from the fact that some degree of humour at the expense of another is an accepted part of life; likewise insults which do not diminish the person in the eyes of others. • However, where the ridicule has a tendency of making the person to be shunned and avoided, a cause of action would lie.

19. Professionals & Disparagement • Reputation is especially vital for professionals. Therefore, words which disparage a person’s professional capacity may amount to defamation. For example, to call a doctor a “quack” (Warren v. Green),or a lawyer a “shyster” (Nolan’s case), were respectively held to be defamatory. • In the same vein, a professional musician of whom it was said that he had “no aptitude for music” or an accountant of whom it was said that he had “no understanding of accounts” were respectively held to have been defamed.

20. Murphy v. Lamarsh Dft published of the ptf (Murphy): ‘a brash young radio reporter, Ed Murphy (heartily detested by most of the press gallery and the members)…,” These words were alleged by ptf to be libelous. In the opinion of the court, the ordinary reader of the comments would think that “there must be something wrong or bad about this man Murphy to make these people detest him.” Therefore, the words were held to be defamatory of Mr. Murphy.

21. INTERPRETATION • Thus the rule that words must be given their ordinary and natural meaning includes any inferences or implications which such words may reasonably bear. • The meaning intended by the publisher is irrelevant. • Natural and ordinary meaning may implicate an activity peculiarly harmful to the ptf even if such imputation would do no harm to other members of society. For e.g, to say that a kosher butcher sold bacon was held to be defamatory.

22. INTERPRETATION • There need not be a direct assault on the reputation of ptf. • Courts have to look at the overall context, the prominence or lack thereof given to the offending works. • Ultimately, the court must determine, as a question of law, whether the words, gestures, etc, in the context in which they were uttered or published are capable of bearing a defamatory meaning.

23. INNUENDO • Words may appear harmless on the surface but in narrower contexts in which special knowledge is possessed by certain people, be defamatory. • There are two categories of innuendoes. The first refers to words with technical meaning which depends on some special knowledge possessed by a limited number of persons only.

24. INNUENDO • The second category refers to words which may on certain occasions bear some special meaning other than their natural meaning because of some extrinsic facts or circumstances. • Where an innuendo is argued to be defamatory, a ptf must plead and prove a legal innuendo and the underlying facts which make the words have a special imputation.

25. Material Must refer to Ptf • In addition to the material being defamatory, ptf must prove that the words were spoken of and concerned him/her. This is often known as the “colloquium”. • Only the living can be defamed. The dead have no justiciable reputation, unless the imputation made to them reflects on the living. For e.g, to say that the deceased could not have been the natural father of his living children may defame her family because their social status is impugned.

26. The Colloquium • The law is that ptf must show that a reasonable reader would identify the material as referring to him/her (the ptf). • There is little problem when the ptf is specifically named in the offending material. • The challenge arises when the ptf has to be identified by inference. Note the approach with respect to caricatures, cartoons, et cetera.

27. Group Defamation • A person who is a member of a large group may not recover in libel if a defamatory imputation is made against the whole group. • To say that “all lawyers are thieves” is obviously an exaggeration which cannot ground an action in libel. • However, where the group is a relatively small one, members of that group may recover. The courts have not sufficiently delineated “small” groups from “large” ones.

28. Mass Defamation • In Booth v. B.C.T.V, a prostitute interviewed by the TV stated that 2 members of the Narc Squad “…that are high up, right up on top” took payoff from prostitutes to avoid arrest and removal from the streets of downtown East Vancouver. 11 members of the Vancouver Police Dept., sued. • The court found for the 2 top officers but dismissed the action of the other 9 officers because the defamatory comments could not be said to have referred to them.

29. Publication of Material • A key requirement is that the material must be published. Publication means communication to a third person. • Apart from spoken or written words, there are other activities and objects which may convey an imputation defamatory of some person. • These would include statues, waxworks, cartoons, cinema or television pictures, burning a person in effigy, hanging a sign outside his house, signs and gestures, marks on a pavement, etc have all been considered capable of conveying a defamatory imputation.

30. Publication of Material • If words have been used, ptf must prove that other persons heard and understood the offending words. • The meaning of spoken words may be affected by the tone of voice in which they are spoken or by accompanying expressions or gestures. • With written materials, however, if publication was never intended, and the dft could not by reasonable care have avoided it, there would be no liability. Some element of fault is required.

31. Libel and Slander • Libel is committed when defamatory matter is published in a “permanent” form or in a form which is deemed to be permanent. • Defamation by spoken word or in some other transitory form is slander. • The difference is that in common law, libel is actionable per se, that is, the ptf is not required to show any actual damage. The court may award substantial damage even in the absence of proof of actual damage.

32. Libel and Slander • On the other hand, slander, with four exceptions, is not actionable per se unless there is a proof of damage. The exceptions are: • Imputation of the commission of a serious crime punishable by a prison term; • Imputation of a contagious or infectious disease, eg, leprosy, VD, etc. • Imputation of “Unchastity” to a woman (this did not apply to a man) • Imputation of unfitness to practice one’s trade or profession.

33. Libel and Slander • The distinction between libel and slander rests on very weak arguments. • Modern technology has rubbished the alleged divide between states of (im)permanent media of publication. • It is unclear how the distinction may be drawn in several cases. Is reading out a defamatory letter a libel or slander? If a boss dictates a defamatory material to her secretary, is it libel or slander?

34. Apology • Given the important role that “fault” plays in attaching liability, especially in cases of accidental publication of defamatory material, an apology by the dft is accorded serious weight. • Many jurisdictions have enacted laws empowering the courts to take apologies into consideration in determining quantum of damages.

35. Hate Propaganda • There is a debate as to whether, in a democratic society, the state should regulate what individuals say or publish about other persons. • In Canada (unlike the USA) tort law has largely deferred to the preservation of individual reputations, even if such stance results in a diminished exercise of the right to free speech. • Owing to the inadequacies of defamation in protecting minority groups, legislation has been enacted to offer protection to victims of “hate propaganda.” • s.319 of the CC, “every one, who by communicating statements in any public places, incites hatred against any identifiable group [distinguished by colour, race, religion, or ethnic origin] where such incitement is likely to lead to a breach of the peace” or

36. Hate Propaganda • Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of an offence.” • Questions and numerous litigations have arisen as to whether such laws limit the right to free speech in a democratic society. See the Zundel cases.

37. Defences to Defamation • Justification • Absolute Privilege • Qualified Privilege • Fair Comment

38. Justification • Truth is an absolute defence to defamation. No one is entitled to a reputation that upon evidence is mismatched with their true character. • However, where a dft alleges truth of the imputation, dft must not only prove the truth of the material in their ordinary and natural meaning but also, if inference and innuendo are implicated, the truth of those inferences and innuendo. • It is the substance of the truth, not its minute details that matter.

39. Absolute Privilege • Judges, witnesses, advocates, and parties to a litigation may speak freely and falsely while participating in judicial proceedings. • Court documents, proceedings, and client/lawyer communications pertaining to a suit are equally immune. • Reports of judicial proceedings are also protected, provided they are fair and accurate, published contemporaneously with such proceedings, and where necessary, must contain a reasonable statement of explanation by the ptf.

40. Absolute Privilege • Statements made on the floor of Parliament, communications made between Ministers of the Crown, and communications between very senior members of the military are also protected.

41. Qualified Privilege • This is conditional immunity that attaches to certain types of communication between parties. • The privilege arises “where the person who makes the communication has an interest or a duty, legal social, or moral to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest of duty to receive it.” • Qualified privilege may also arise in cases of (1) public interest, or (2) moral or legal interest to protect another’s interest, or (3) common interest or mutual concern, (4) protection of one’s own interest. • In Canada, qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself.

42. Malice • Only statements which are relevant to the privileged communication are protected. For the defence to hold, there must be no malice on the part of the dft and the privilege must not be exceeded. • Malice generally refers to ill-will, bad faith or spite. It may also mean the absence of honest belief in the material published or reckless disregard for the veracity of the offending materials. • Malice goes to the state of mind of the dft at the time the offending words were published. • The onus is on the ptf to prove malice.

43. Self-Protection • A person is at liberty to rebut wrongful imputations made against his/her reputation. The response must be limited to words necessary to “put the records straight.” • The defence cannot be used to destroy another person’s reputation. The refutation must be addressed to those with a duty to receive it.

44. Mutual Interest • On a subject in which parties have a mutual legitimate interest, (business or pecuniary) communication between such parties enjoy qualified privilege. • Shareholders and directors may, in the absence of malice, exchange information about employees without attracting tort liability.

45. Jones v. Campbell • Burnley “Rocky” Jones, a famous Black lawyer in Halifax was sued by Constable Campbell for comments he made at a public press conference in respect of a pending litigation. • Campbell had been invited by the principal of a predominantly Black school in Halifax to investigate two incidents of theft at the school. In her investigations, Campbell strip searched three Black female students in the predominantly Black school located in a poor neighbourhood. Following public outrage, the girl’s parents sued Campbell and the police.

46. Jones v. Campbell • At a press conference called by Rocky Jones, the media asked Jones questions and in response, he said that in his view, Campbell would not have strip searched the girls if they were White girls or girls from affluent families. • Campbell sued in defamation alleging that Jones’ comments and written speech suggested that she was a racist. The trial court found for her on the basis that the press conference went beyond the needs of qualified privilege. Jones appealed to the NS CA.

47. Jones v. Campbell • In a split decision, the CA held that for qualified privilege to apply, the dft must communicate appropriate information to the appropriate people. Qualified privilege does not fail simply because the dft addressed the public at large. As long as there is reciprocity between the informer and the informed, and the statements were germane and appropriate, and there is no malice on the part of the dft, the defence of qualified privilege will apply.

48. Mutual Concern • A person who makes a statement in the discharge of a public or private duty, whether legal, moral, or social enjoys qualified privilege. The recipient of the information must have a reciprocal interest in receiving it. • This defence usually applies when parties are responding to specific inquiries, for e.g, character references on discharged employees or defamatory statements made by a father to his daughter about a prospective husband.

49. Watt v. Longsdon • Ptf sued the dft for sending his wife, who was in England, a letter which indicated that he had had “immoral relations” with his housemaid while living in Morocco. The ptf’s wife sued him in divorce as a result. Dft, a friend of the wife, had done business with ptf in Morocco. Dft pleaded in defence that he was under a moral duty to inform ptf’s wife of the alleged affair in Morocco. The CA in England held that there was no moral or social duty to make such communication.

50. Public Interest v. Interest to the Public? • Comments made by publishers of newspapers to the public on a matter of public interest may be immune from liability. WHAT IS A MATTER OF PUBLIC INTEREST/ • “public interest is different from saying that it is information which interests the public-the most vapid tittle-tattle about the activities of footballer’s wives and girlfriends interests large sections of the public but no one could claim any real public interest in our being told all about it.” Baroness Hale of Richmond in Jameel v. WSJ.