E. Defences

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

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The pivotal role of the defences in defamation is evidenced by the fact that every day in Canada many critical and derogatory things are said and written about others in all manner of print publications, radio, and television broadcasts and in social and political dialogue without exposing the speaker to liability in defamation. In the absence of the defences to defamation, it would be necessary to cleanse all public and private speech of uncomplimentary comments and statements. This would not only demand an intolerable burden of self-censorship but would also impose an unreasonable restriction on one’s freedom to voice dissent, criticism, or outrage, to promote unpopular social or political views, to voice opinion both wrongheaded and sensible, and to be involved in the spirited and robust dialogue that is the hallmark of a healthy democracy. A heavy burden is, therefore, placed on the defences of justification, privilege (both absolute and qualified), fair comment on matters of public interest, responsible communication on a matter of public interest, and consent to protect the important value of free speech and restore an appropriate balance between the protection of reputation and free speech.

1) Justification

Proof that the defamatory statement is true is a complete defence to liability in defamation. A person is always permitted to speak the truth about another no matter how painful or damaging the truth may be. The reason that is most commonly given for this defence is that defamation protects the plaintiff’s reputation, and if the plaintiff’s reputation is damaged by the truth, it is a reputation that is unwarranted and unworthy of protection by the law of defamation.

It is not necessary to establish the literal truth of each and every word or phrase used by the defendant but there must be proof that the

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words are substantially true in respect of their defamatory meaning. The claim of justification does carry some risks because a failure to substantiate a claim of justification may warrant an increase in damages.

The defence of justification may operate harshly in respect of a citizen of good repute whose reputation is damaged by the revelation of youthful indiscretions or past misconduct that are no longer indicative of his character or integrity. A person who makes such statements without reason other than to cause anguish, distress, and embarrassment may be accused of abusing the right of free speech. The common law does not, however, investigate the motives of those who damage others by disclosing true facts. To this extent, priority is given to robust free speech. Such conduct is better classified as a breach of privacy arising from the publication of personal information that is not in the public interest. It may be actionable under the privacy acts of British Columbia, Manitoba, Newfoundland, and Saskatchewan, or under the nascent common law tort of privacy.

2) Privilege

There are certain occasions when the public interest in promoting full and frank communication between individuals takes precedence over the protection of an individual’s reputation. These are referred to as occasions of privilege, and defamatory statements are not actionable. The privilege attaches to certain occasions, not to particular speakers or messages. As a general proposition, the occasion must be one where it is necessary, in the public interest, to speak candidly, without impediment or inhibition and without the threat of potential liability for statements that damage the reputation of others. The privilege may be absolute or qualified. Absolute privilege provides a complete immunity from liability for defamation even if the statement is made with malice. Qualified privilege is destroyed by malice but protects bona fide and honest statements.

a) Absolute Privilege

An absolute privilege arises when the occasion justifies the complete pre-eminence of free speech and the full eclipse of the plaintiff’s interest in the protection of his reputation. These occasions, which are in the main designed to facilitate the operations of all branches of government, are quite well defined and are, understandably, held in tight check by the courts.

The privilege extends to all statements made in the course of parliamentary proceedings and statements made in the provincial legislatures. Reports of these legislative proceedings and the meetings of

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its constituent committees are subject to a qualified privilege both at common law and under the defamation acts.

An absolute privilege also extends to all statements made by the parties, witnesses, counsel, and the judge in the course of judicial proceedings. Statements made between counsel and client in preparation of, and in contemplation of, litigation are subject to absolute privilege, as are communications between counsel and potential witnesses and the reports submitted by potential witnesses in preparation for trial. Reports of judicial proceedings are subject to an absolute privilege if the strict conditions of the provincial defamation acts are complied with, and they are accorded a qualified privilege under the common law. The protection of reports of both judicial and legislative proceedings is justified by the public’s legitimate interest in institutions of government.

Communications on official business between high executive officials of state such as cabinet members and the highest level of the civil service are absolutely privileged; the privilege may also extend to the senior levels of the military and the police. Finally, communications between spouses are similarly privileged to protect the confidentiality of the marital relationship. In each of these situations there is a vital public interest in candid and uninhibited communications.

b) Qualified Privilege

The occasions of qualified privilege are more difficult to define. There is no tightly drawn list of discrete occasions to which the privilege attaches, and the multitude of diverse situations found in the cases do not suggest clear and predictable rules. A couple of points should be kept in mind. First, qualified privilege is not extended lightly. There must be a compelling public policy reason to permit honest defamatory statements to be made at the expense of the plaintiff’s reputation. That reason must be found in the public utility and social desirability of uninhibited and candid communication free from the threat of legal action. Secondly, occasions of qualified privilege are defined by the correlative concepts of duty and interest between the parties to the communication. Normally, there must be some reciprocity of these concepts between those who are privy to the communication, such as a moral, social, or legal duty to speak to someone with a legitimate interest to receive the information, a legitimate interest in giving information to someone with a duty to receive it, or a legitimate interest in providing this information to someone with a mutual interest in receiving it.20These concepts are not only sufficiently loose and discretionary to accommodate the multitude

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of situations that arise but they also allow the privilege to be crafted to special relationships, special occasions, and for special purposes. They also allow the courts to control the scope of the privilege in order to accommodate legitimate needs appropriately while minimizing the scope of potential damage to the reputation of others. Ultimately, however, the question is whether or not the interest in free speech ought to be given priority over the interest in individual reputation.

A few examples will suffice to illustrate the process. A qualified privilege extends to erroneous communications from a parent to an adult child about the disreputable conduct of the person he intends to...

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