EAC Conference 2012, Day 2—The new libel defence: responsible communication

Ian Stauffer, a specialist in civil litigation, gave an overview of defamation and its defences, including a relatively new defence—responsible communication—which the Supreme Court of Canada recognized in late 2009.

Defamation was defined in the 1950 case of Willows v. Williams as follows:

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers. It lowers him or her in the estimation of right-thinking members of society generally and causes him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem.

To make a case for defamation, one must prove

  • the words were published or spoken to a third party
  • the words referred to the plaintiff
  • the words were defamatory

Stauffer said that in the world of defamation, nothing is definitive. It’s hard to predict how much, if anything, a client might receive in a defamation case, and there is no scale for awarding damages. Pursuing a defamation case is also risky because the offending words are likely to be republished, and more will be said. “It’s not easy to put the genie back in the bottle,” Stauffer said.

Usually, he explained, the client will initially request an apology and retraction. Whether apologies are issues and how they are worded can affect the damages potentially awarded later on.

Defamation can be classified as slander, which is usually spoken and more ephemeral, or libel, which is typically written or otherwise recorded. Traditional defences to libel are truth (i.e., justification), privilege (absolute or qualified), and fair comment. Now there is a fourth defence: responsible communication.

Absolute privilege refers to remarks made in a chamber such as the House of Commons or Senate; qualified privilege includes performance reviews, letters of reference, etc. Fair comment refers to a comment made in good faith, without malice, on a matter of public interest. It must be identifiable as a comment rather than a statement of fact.

Responsible communication refers to reportage on matters of public interest in which the publisher has been diligent in verifying an allegation and the reliability of the source. A jury in a case in which responsible communication is used as a defence would also weigh whether the plaintiff’s side of the story was sought out and whether the inclusion of the defamatory statement was justifiable. This new defence lifts the chilling effect on reporters and frees them to write about potentially contentious matters of public interest.

Stauffer’s handed out copies of a paper he authored, “Defamation, responsible communication and cyberspace,”  which elaborates on the above issues, as well as their application to Internet-related cases, and offers examples and specific case studies.

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