1. 1 The Law Of Libel University of Ottawa TORTS LECTURE February 28, 2011 Richard G. Dearden Wendy J. Wagner

2. 2 The Tort of Defamation The tort of defamation consists of libel or slander. Libel is the written word …(newspapers, writings, signs, pictures, films, broadcasts). Slander is the spoken word. A libel plaintiff has a cause of action if the words complained of: 1.are defamatory; 2.refer to the plaintiff; 3.are published.

3. 3 What is Defamatory? A defamatory publication is one that lowers the reputation of the plaintiff in the estimation of right thinking members of society generally. In other words, a publication is defamatory if it has the tendency to or does injure, prejudice or disparage the plaintiff in the eyes of others, or lowers the good opinion, esteem or regard which others have for the plaintiff, or causes the plaintiff to be shunned and avoided, or exposes him to hatred, contempt or ridicule. The Law of Defamation In Canada (2d) Professor Ray Brown at p. 4-3

4. 4 Libel is A Strict Liability Tort Libel is a strict liability tort. Libel plaintiffs in the common law provinces need only prove that the words complained of are: 1. capable of being defamatory; 2. were published; and 3. refer to the plaintiff. The law then presumes that the words complained of are false and the plaintiff suffered damages (ie. there is a reverse onus).

5. 5 The Defences 1.truth 2.fair comment 3.absolute privilege 4.qualified privilege 5.public interest responsible communication 6.reportage 7.consent

6. 6 Truth Truth (or justification) is an absolute defence to a libel action. Malice does not defeat the truth defence. The defence of truth is not available to defendants who republish defamatory statements made by another person. For example, if a defendant publishes that “x” said “y” is a criminal, the defendant will have to prove it is true that “y” is a criminal (vs. proving it is true that “x” said “y” was a criminal). This is known as the repetition rule.

7. 7 Absolute Privilege Some communications are protected by an absolute privilege and cannot be defeated by malice. Examples – statements made in Parliamentary proceedings – statements made during judicial proceedings.

8. 8 Qualified Privilege The defence of qualified privilege protects defamatory statements published on certain occasions. Qualified privilege attaches to the occasion upon which the communication is made and not to the communication itself. A privileged occasion is an occasion where the person who makes the communication has an interest or duty, legal, moral or social, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. The reciprocity is essential. Examples – character references, reports of a crime to police. The privilege can be lost if the defendant exceeded the privilege, abused it or acted maliciously.

9. 9 Consent It is a defence to a libel action that the claimant consented to the publication of which he now complains by participating in or authorizing it. This is a narrow defence – the mere submission by the claimant of a matter to public discussion is not consent. Refusal to respond to an accusation is not consent to its repetition. Gatley On Libel and Slander (11 th edition) at p. 19.10

10. 10 Malice Introduction malice in law is presumed upon proof of publication; if the defendant establishes the defence of qualified privilege or fair comment, the defendant is then presumed to have acted honestly and without malice; the burden of proof shifts to the plaintiff to prove the defendant acted with actual or express malice; the defences of fair comment and qualified privilege are defeated if the defendant acted maliciously; aggravated and punitive damages may be awarded if the defendant acted maliciously.

11. 11 Definition actual malice is commonly understood as spite or ill will towards somebody; a defendant acts maliciously if the defendant knew that he/she was not telling the truth or was reckless in that regard; a defendant who publishes defamatory statements for an indirect motive or ulterior purpose may also be found to be acting maliciously.

12. 12 Indicia of Malice 1.Failure to provide the plaintiff with a fair opportunity to defend the defamatory allegations. Leenen v. CBC at pp. 708-709 2.Omitting significant evidence that was contrary to the defendant’s thesis. Leenen v. CBC at pp. 709-713 3.The conduct of the Defendants prior to publication and post publication. Leenen v. CBC at pp. 713-717

13. 13 4.Failure to present a fair portrayal of the plaintiff. Leenen v. CBC at pp. 717-718 5.Reliance on information from a biased source (axe to grind). Leenen v. CBC at pp. 718-720 6.Ambush interviews. Leenen v. CBC at pp. 720-721

14. 14 Damages Introduction The assessment of damages in a libel case flows from a particular confluence of the following elements: 1.the nature and circumstances of the publication of the libel; 2.the nature and position of the victim of the libel; 3.the possible effects of the libel statement upon the life of the plaintiff; 4.the actions and motivations of the defendants.

15. 15 General Damages general damages to a plaintiff’s reputation are presumed to have occurred upon publication of the false and defamatory words; because the real damages cannot be ascertained damages are “at large”; a defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime.

16. 16 Factors to Consider in Assessing General Damages 1. the seriousness of the defamatory statement; 2. the identity of the accuser; 3. the breadth of the distribution of the publication of the libel; 4. republication of the libel; 5. the failure to give the audience both sides of the story and not presenting a balanced review;

17. 17 6.the desire to increase one’s professional reputation or to increase ratings of a particular program; 7.the conduct of the defendant and defendant’s counsel through to the end of trial; 8.the absence or refusal of any retraction or apology; 9. the failure to establish a plea of justification.

18. 18 Aggravated Damages Aggravated damages may be awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the libellous statement. Aggravted damages take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right- thinking people arising from the malicious conduct of the defendant.

19. 19 Punitive Damages Punitive damages are not compensatory and are awarded to punish the defendant. Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. Punitive damages are the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. Punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.