Does a Victim of Defamation Need to Stay Quiet or Can the Victim Speak Out Against the Defamation?

When a Person Is the Victim of a Defamatory Attack, the Person Has the Right to Respond In Kind and Should the Victim Defame the Attacker, Generally, the Victim Is Protected Against Civil Liability By Qualified Privilege.

Understanding the Right to Defend By Responding When Defamed Including the Applicable Qualified Privilege Protection

Lawsuit Document The person who is a victim to defamation, whether the defamation occurs in writing as a libel or by speech as a slander, the victim is, generally, entitled to publish a response to the defamation. By publishing a response, the victim creates an opportunity to provide the truth and to correct the defamatory statements within an open public debate. Doing so can be an effective way to mitigate reputational harm instead of waiting for reputational vindication through the expensive and extensive procedure of civil litigation.  By publicly responding to the defamatory attack, the victim can control the narrative, can minimize public belief of the untruths, and can minimize reputational harm.

The Law

As explained by the Supreme Court of Canada in the case of 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, the reputation of a person is a highly valuable asset.  Additionally, in the case of Bent v. Platnick, 2020 SCC 23, the Supreme Court said that reputational is especially concerning to professionals such as lawyers or doctors.  Specifically, in 1704604 and Bent, the Supreme Court stated:

[69]  Either monetary harm or non-monetary harm can be relevant to demonstrating (i) above. I am in agreement with the Attorney General of Ontario at the time the legislation was debated, who recognized at second reading “that reputation is one of the most valuable assets a person or a business can possess” (Legislative Assembly of Ontario (2014), at p. 1971 (Hon. Madeleine Meilleur)). Accordingly, harm is not limited to monetary harm, and neither type of harm is more important than the other. Nor is harm synonymous with the damages alleged. The text of the provision does not depend on a particular kind of harm, but expressly refers only to harm in general.

[147]  The import of reputation is only amplified when one considers professional reputation. In Hill, this Court remarked specifically on the “particular significance reputation has for a lawyer”, noting that it is the “cornerstone of a lawyer’s professional life”. As I mentioned earlier in these reasons, I see no principled reason to draw a distinction between lawyers and other professionals, such as doctors, when it comes to the protection of reputation. Both the legal profession and medical profession are comprised of professionals who rely on their individual expertise to succeed within their respective professions. This was expressly contemplated in Botiuk, where this Court wrote that “[i]t should be recognized that these observations [regarding the legal profession] will be equally applicable to other professions and callings”.

A person who publicly responds to a defamatory attack is, generally, protected when doing so as the circumstances qualify as an occasion of qualified privilege.  In such circumstances, the principle of qualified privilege that applies does so to provide a protection from civil liability if, within the response to the attack, subject to conditions, the victim defames the attacker. The view that a person make rightfully respond to a defamation attack was expressed in the case of Whitehead v. Sarachman, 2012 ONSC 6641 as well as Nixon v. O'Callaghan, 1926 CanLII 421.  Additionally, as explained within the Nixon and O'Malley cases, among others, a conditional qualified privilege to protect the victim exists. Many cases confirm that the principle is longstanding and maintained whereas such was stated more than eighty (80) years ago in Falk v. Smith et al., 1940 CanLII 96, twenty (20) years ago in RTC Engineering Consultants Ltd. v. Ontario, 2002 CanLII 14179, and recently in Weisleder v. OSSTF, 2019 ONSC 5830.  Within such cases it was stated:

[70]  The law of defamation balances important competing interests.  Society as a whole benefits from full and frank debate of public issues.  Public officials have a duty to speak candidly on matters of public interest.  Political debates should not be stifled by “libel chill”, which casts a broader penumbra than the metes and bounds of the tort of defamation.  Mis-statements, overstatements and excessive language may be exposed and corrected through public debate, often in a more timely and effective manner than through the slow process of a civil action.

The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression.  There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action….  Public controversies can be a rough trade, and the law needs to accommodate its requirements.

It is not the law that if A slanders or libels B, B has the legal right to slander or libel A. But our law recognizes that we live in a work-a-day world with its rude buffetings, not an idyllic paradise of Watteau shepherds and shepherdesses, but full of men with red blood and strong passions. It is, therefore, tolerant of human frailty. Consequently, "a person whose character or conduct has been attacked is entitled to answer such attack, and if he make defamatory statements about the person who attacked him, such statements will be privileged, provided they are fairly relevant to the accusations made against him and published bona fide (Gatley on Libel and Slander, 1924, p. 262, citing Coward v. Wellington (1836), 7 C. & P. 531; Hibbs v. Wilkinson (1859) , 1 F. & F. 608; Hemmings v. Gasson (1858) , El. Bl. & El. 346, 120 E.R. 537 ; O'Donoghue v. Hussey (1871), I.R. 5 C.L. 124; Dwyer, v. Esmonde (1878), 2 L.R. Ir. 243; Laughton v. Bishop of Sodor & Man (1872), L.R. 4 P.C. 495). 'The law justifies a man in repelling a libellous charge by a denial or an explanation. He has a qualified privilege to answer the charge ; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false,' " per curiam in Brewer v. Chase (1899), 80 Amer. St. R. 527, at p. 532, 46 L.R.A. 397.

[41]  In this case, the conclusion that the four occasions were subject to a qualified privilege arises from several factors. First, the defendant was at all material times defending himself, his staff and the Calgary Herald from allegations of bias in their coverage of the abortion debate. This factor of defence or response has been integral in characterizing certain statements as privileged. Gatley, p. 218, states:

… a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made.

This principle has also been articulated in case law: Netupsky v. Craig, 1972 CanLII 19 (SCC), [1973] S.C.R. 55, 28 D.L.R. (3d) 742, and Daniel v. Mount Allison University (1976), 15 N.B.R. (2d) 373 (Q.B.), and has been likened to the right of self-defence in criminal law: Linden, Canadian Tort Law, 3rd ed. (1982), at pp. 703-704. Courts are generally more receptive to a publisher who responds to a request, as opposed to one who volunteers the information: Brown, at p. 480.

[42]  Secondly, the person receiving the communication must have a corresponding duty or interest in receiving it. This element of reciprocity is essential: per Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334. In this case, the plaintiff was genuinely concerned about the problem he perceived, and he expressly asked for some response to his inquiries. Regardless of what the defendant actually said, there can be no doubt that the plaintiff had a very keen interest in receiving the communications. The issue of reciprocal interest was the impartiality of the Calgary Herald on the issue of abortion; it was questioned by Mr. O'Malley and defended by Mr. O'Callaghan. It forms the basis of all of the correspondence alleged to be defamatory in this action.

[43]  Thirdly, the response or answer to such an attack must be proportionate to the initial attack itself. A privilege will be lost if the defamatory remarks are entirely unrelated to or in excess of what is called for by the situation. Yet what constitutes "excess" is not to be presumed merely from any insulting language (Brown, at p. 523): "A court, however, will not be quick to condemn for excess, or be overly critical in their appraisal of the language used by a person to defend his or her reputation." But where self-defence becomes offence, the privilege will be lost. Such an excessive rejoinder may go to proving that the response made was malicious.

The underlying principle is laid down by Mr. Justice Riddell in Nixon v. O'Callaghan (1926), 1926 CanLII 421 (ON CA), 60 O.L.R. 76, in the following terms: A person has a perfect right to answer an attack on his character of conduct. We live in a work-a-day world with men of red blood with natural passions and the language used in repelling an attack is not to be carefully scrutinized.

There is also the case of Bowen-Rowland v. Argus Press referred to in Gatley, 3rd ed., p. 295, and the judgment of Avory J. in the famous Wright v. Gladstone case, in which he said that a man could defend not only his own character, but might reasonably attack the character of the complainant, and that the language was not to be closely scrutinized.

In this case I can find no evidence of malice on the part of the defendant. It was simply a perfectly justifiable effort on her part to repel the attack which had been made by the plaintiff on her character and reputation.

[16] At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. A defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it. "Interest", however, should not be viewed technically or narrowly. The interest sought to be served may be personal, social, business, financial, or legal. The context is important. The nature of the statement, the circumstances under which it was made, and by whom and to whom it was made are all relevant in determining whether the defence of qualified privilege applies.

[17] Two examples are relevant here. First, a lawyer may have a qualified privilege in trying to protect the legitimate interests of a client. And second, a person attacked by another may respond in kind, in the same way and to the same audience chosen by the person making the attack: Netupsky v. Craig, 1970 CanLII 46 (ON CA), [1971] 1 O.R. 51, 14 D.L.R. (3d) 387 (C.A.), affd 1972 CanLII 19 (SCC), [1973] S.C.R. 55, 28 D.L.R. (3d) 742; Falk v. Smith, 1940 CanLII 96 (ON CA), [1941] O.R. 17, [1940] 4 D.L.R. 765 (H.C.J.). And see generally Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1999), Vol. 2, Ch. 13; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129; Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, 126 D.L.R. (4th) 609.

[18] Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term "qualified privilege" itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context, malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. See Hill v. Church of Scientology, supra, and Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] 1 S.C.R. 275, [1952] 1 D.L.R. 657.

[21]  The law of qualified privilege extends to protecting a person making defamatory statements when they are responding to attacks on that person’s character, provided they are bona fides and are “fairly relevant” or “germane and reasonably appropriate to the occasion”.[17] Using qualified privilege as a defence is much like using the right of self-defence in criminal law:

[T]here is a “privilege to hit back when one’s reputation is attacked”. A person has a right, within limits, to defend himself or herself against false accusations. This privilege has been likened to a man’s right of self-defence in criminal law. Where a defendant is attacked by another, he or she is privileged to meet the attack with an appropriate rejoinder, and where the attack is a public one, the public has a corresponding interest in the reply. There is available to him or her the common law privilege of self-defence. A defendant is not obliged to keep one hand behind his or her back and retaliate with respect to only some of the blows. Nor is he or she obliged to follow the rules of Queensberry. A person…is entitled to respond by way of vindication. …He or she may deny or explain the defamatory matter, correct any misstatements, reflect adversely on the assailant, label a personal attack as a “lie” and the attacker as a “liar”, “attack in proper language the accuracy of the conclusions”, “impugn the truth of the charges”, question the purity of the accuser’s motives, and, in an appropriate case, even defame the assailant in the process.[18]

[22]  In the context of attacks on a defendant’s reputation, express malice will only be found where the defendant’s desire to protect his or her reputation or interest plays no significant role in the motive for publishing what he or she believes to be true. In other words, malice is not established where there is evidence that the dominant motive of the defendant was to defend their reputation in response to the plaintiff’s publications.[19]

[23]  Excessive or inflammatory language will not defeat the defence of qualified privilege. In Ward, the British Columbia Court of Appeal explains as follows:

The law does not require either blandness or accuracy as a condition of successfully invoking qualified privilege. The law was stated thus by Lord Atkinson in Adam v. Ward, supra, at p. 173:

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.[20]

Interestingly, the qualified privilege protection available to a person who responds to a defamatory attack with defamatory statements is negated if the response was made with malice as the dominant purpose of the response rather than for protecting reputation.  With this said, determinations of malice should be carefully reviewed by the court to ensure that indeed the malice, if any, was the dominant purpose of the response.  The malice exception to qualified privilege and the need for a court to avoid knee-jerk determinations of malice was well explained in the Weisleder case as well as Netupsky v. Craig, [1973] S.C.R. 55, wherein each it was respectively said:

[16]  Malice may be established by showing that the defendant either knew that he was not telling the truth or was reckless in that regard.[11] However the process by which that belief was arrived at may be imperfect.[12] The law requires no more than the defendant having an honest and positive belief that the conclusions they have reached are true.

[17]  “Recklessness” to the truth has a particular and narrow meaning in defamation law:

If ‘reckless’ here means that the maker of the statement has jumped to conclusions which are irrational, reached without adequate enquiry or based on insufficient evidence, this is not enough to constitute malice if he nevertheless does believe in the truth of the statement itself. The only kind of recklessness which destroys privilege is indifference to its truth or falsity.[13]

[18]  The person making the defamatory statement on the privileged occasion is able to rely on information provided to that person by others and need not necessarily investigate the content of the statement. A defendant is not required to research the truth of the allegations.[14]

[19]  The law of defamation recognizes that people’s motives may be mixed (and thus requires the dominant purpose to be malice):

Judges and juries should… be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner.[15]

[20]  The law recognizes that there is a difference between mere dislike is not sufficient to establish malice:

Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, dislike the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that ‘express malice’ can properly be found.[16]

The determination of this appeal in my opinion, turns on the question of whether there was any extrinsic or intrinsic evidence that the respondents were motivated by malice in writing the letter which is complained of. There can be little doubt that if there is evidence proving that the statements complained of are false to the knowledge of the person who makes them, they are taken to have been made maliciously, but this statement must be read in the light of the language used by Lord Atkinson in Adam v. Ward[2], at p. 339, where he said:

...a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

Malice Defined

As above, per Weisleder and Netupsky, among other cases, the conclusion that a victim of a defamatory attack responded maliciously should be a conclusion that a court determines with great hesitation.  With this said, the factors that a court should take into consideration when reviewing whether malice was the purpose of defamatory statements are very well explained in the case of Canadian Standards Association v. P.S. Knight Co. Ltd., 2019 ONSC 1730 where it was said:

[104]  Actual or express malice is established where someone publishes a defamatory expression (i) knowing that it is false; (ii) recklessly indifferent as to whether it is true or false; (iii) for the dominant purpose of injuring the plaintiff because of spite or animosity; or (iv) for some other dominant purpose which is improper or indirect.

[105]  Evidence of actual malice may exist “intrinsically”, based on the mode and style, tenor, tone and spirit of the publication, if the language is more abusive, extreme, exaggerated, inflammatory, sensationalized, offensive, excessive or extravagant than required. In addition, the following “extrinsic” factors have been considered to be evidence of malice: (i) repetition of the libel; (ii) statements made in reckless disregard for the truth; (iii) statements made without taking steps to check or verify the facts; (iv) overly wide dissemination of statements made via the Internet; (v) the defendant’s reassertion of his belief in the charge after the charge has been disproved in legal proceedings; (vi) the conduct of the defendant up to and including trial; (vii) omitting significant information that was contrary to the defendant’s thesis; (viii) reliance on an obviously biased source; (ix) a biased and disdainful attitude on the part of the defendant toward the plaintiff; and (x) failure to make an inquiry or further investigation: Rodger D. McConchie & David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004), at pp. 301 and 320; Brown on Defamation, supra, Vol. 5 at pp. 16-120, and 16-138 - 16-139; Armstrong v. Corus Entertainment Inc., 2016 ONSC 5242, at para. 47.

[106]  Lack of proper investigation or verification of allegations constitutes malice. Publishing subsequent articles attacking the claimant and alluding to a libel action is evidence of malice. Where, after publication, a defendant obtains proof that what he said was untrue, failure to retract a serious charge provides evidence of malice: Rogacki v. Belz (2004), 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585 (Ont. C.A.), at paras. 45, 46, 49, 52; Farrell v. St. John’s Publishing Co. Ltd. (1986), 1986 CanLII 2436 (NL CA), 58 Nfld. & P.E.I.R. 66, leave to appeal to SCC refused, [1986] S.C.C.A. No. 246, at para. 45; Brown on Defamation, supra, at pp. 16-138 to 16-139; Graham v. Purdy, 2017 SKQB 42, at para. 220; and Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401, leave to appeal to SCC refused, [2017] S.C.C.A. No. 71, at para. 55.

Summary Comment

When a person is defamed by another person, the victim has a right to respond to the defamation for the purpose of defending against the defamatory allegations and protecting reputation.  The victim may respond aggressively and so long as the victim refrains from responding in a dominately malicious manner, if the victim defames the defamer, the victim is, generally, protected by qualified privilege against any civil liability for defamation of the defamer.

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