H. Defamation and Negligence

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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The commonly held view was that the tort of defamation was the exclusive basis for claims of harm to reputation. You could not, for example, avoid the technicalities of the tort of defamation by "dressing up" your case as an action in negligence. This orthodoxy was considered by the Supreme Court in Young v. Bella,46a negligence action brought by a student in social work against the university in which she was enrolled. The student was erroneously suspected of being a child abuser. The source of the suspicion was an inadequately footnoted research paper submitted to her professor. These suspicions could have been allayed by speaking with the student. The university officials chose instead to report their suspicions to child protection authorities. This report became known in police and social worker circles and it was not discredited until a child protection official interviewed the student two years later. By that time her reputation and career plans were significantly harmed. The university argued that the case was one of defamation and it was protected by qualified privilege. The Court, however, upheld liability in negligence on the grounds that the university was under a pre-existing duty of care to the student and the harm suffered was not exclusively to her reputation. The earlier cases calling for a mutual exclusivity between the torts were explained as cases where there was no pre-existing duty of care. Furthermore, in the Court’s opinion, freedom of expression and the policies underlying qualified privilege could be taken into account in determining the appropriate standard of care.

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BARENDT, e., et al., Libel and the Media: The Chilling Effect (Oxford: Clarendon Press, 1997)


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