Bloggers and defamation law: a primer

This summary of defamation law by my friend Ted Betts, which originally appeared at his blog (now sadly defunct) more than three years ago, seems a still-timely reminder to us all as we joust, fence, box, and occasionally land a low blow.

[Reprinted by permission.]

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A blogger has been sued for defamation.

To my knowledge, this is the first high profile defamation lawsuit involving a Canadian blogger. Warren Kinsella, political consultant to Prime Ministers and Premiers and media “personality”, versus Marc Bourrie, sometime journalist, blogger and student. It’s not exactly David and Goliath, but it may be close. The fact that it involves a media personality and a journalist, and two bloggers, and the Gomery report, means that publicity could spread like wildfire across the Canadian blogosphere. And it seems it already has with Antonia Zerbisias already commenting and the report in the Ottawa Sun on February 15 and many of the Canadian blogosphere have piped in.

This raises serious questions that affects all of us bloggers. Is this an attempt at suppressing criticism? Is it therefore a threat to all bloggers and commenters? Should bloggers, given the context of blogging, somehow be exempt or subject to a lower or different standard than newspapers or individuals? The answer is, obviously, no.

The Charter of Rights guarantees the freedom of expression for all Canadians. But that right does not mean citizens should be exempt from the consequences of exercising that right. Libel laws do not just apply to the media and politicians. Every person is subject to the restriction of defamation laws and bloggers should be no different.

Sometimes it feels like blogging is more conversational, and also more naturally confrontational, and as a result many think we are off in our own little world, exempt from the rule of law that applies to everyone else. This will be a big wake-up call: defamation suits can stem from conversations too and so every post and every comment on a blog is subject to the same defamation laws. Context may go to mitigation but not exemption.

So I offer this post as a service and reminder to my fellow bloggers. Without making any comments on the merits - or demerits - of Warren Kinsella’s lawsuit (from what I read the first of many many threats to advance this far toward actual litigation), I offer the following summary of the law of defamation, libel and slander for the benefit of bloggers, and commenters (applies to you too). I’ve gone beyond the scope of this particular lawsuit because there are many legal holes into which I’ve seen bloggers fall, including the risk of defaming through: repetition of the defamatory comments of others, defaming through innuendo and the failure to properly retract and apologize in accordance with the statutes. Even direct quotations can give rise to a claim of defamation in certain circumstances.

So read and be careful and push the envelope with care.

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General

Defamation consists of any written, printed or spoken words or of any audible or visible matters or acts which tend to lower a person in the estimation of others or cause a person to be shunned or avoided or exposed to hatred, contempt or ridicule. Thus an assertion which does not suggest discreditable conduct by the plaintiff may still be defamatory if it imputes to him or her a condition calculated to diminish the respect and confidence in which the plaintiff is held.

The law of defamation must strike a fair balance between the protection of reputation and the protection of free speech, for it asserts that a statement is not actionable, despite the fact that it is defamatory, if it constitutes the truth or is privileged or is fair comment on a matter of public interest, expressed without malice by the publisher. These defences are of crucial importance in the law of defamation because of the low level of the threshold over which a statement must pass in order to be defamatory.

One test of whether a statement is defamatory is accepted almost universally: Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? Subject to any available defences, everything printed or written, which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.

The scope of defamatory statements is very wide indeed. In all cases, except where actual malice is shown nevertheless, the impugned statement is not actionable if it is the truth or is fair comment or is protected by privilege. This is the reason why most defamation actions centre on the defences of justification, fair comment, or privilege. It is these defences which give substance to the principle of freedom of speech.”

Libel and Slander

At common law, defamation is of two kinds: libel and slander. Traditionally, libel consisted of written communications and was actionable per se. Slanders were spoken communications and usually required proof of actual damage. This distinction has been substantially undermined by modern forms of communication. Libel is now more often said to consist of any written or printed words or any visible or audible matter recorded in any form of a more or less permanent nature, including letters, newspapers, films, or television or radio broadcasts. Slanders are spoken words or other transitory forms of communication, such as sounds, looks, signs or gestures.

Malice

Defamation is usually said to consist of “falsely and maliciously” publishing defamatory statements concerning the plaintiff. This is also the usual form of pleading. However, there is no need to prove this element of legal malice in order to make out a prima facie case of defamation. Legal malice is implied from the mere publication of a defamatory communication. There is, however, another head of malice, usually referred to as express or actual malice, which must be specifically proved. Actual malice becomes relevant if either fair comment or qualified privilege is raised as a defence. Both are defeated by actual malice. Actual malice is also relevant to the quantum of damages.

Charter of Rights

The Charter is clear: Everyone has the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Although the constitutional guarantee expressly applies to governmental action and does not directly affect civil actions between private litigants, the common law of defamation must be interpreted in accordance with Charter principles. Since the common law of defamation already involves a careful balancing of freedom of expression with the dignity of the individual and protection of reputation, the courts are justifiably unwilling to hold the common law of defamation inconsistent with Charter values.

Defamatory Statements and Acts

The courts have not committed themselves to any single test by which defamation is determined. A defamatory imputation may be simply one to the plaintiff's discredit, or one which tends to lower him or her in the estimation of others, or causes him or her to be shunned or avoided, or exposes him or her to hatred, contempt or ridicule. Words likely to damage the plaintiff in his or her business, trade or profession may be another category. The definitions should be regarded as cumulative, so that words that fall within any of them are actionable.

Words that are defamatory in one setting may not be so if used in another setting. Everything depends on the manner in which expressions are voiced and on the circumstances in which they are expressed. For instance, an otherwise defamatory statement made during a violent argument may be mere abuse and not actionable. Because they often insult the pride of the listener rather than disparaging his or her reputation, vituperative epithets that are intended as mere abuse and are understood as such by the hearer are not actionable in defamation, although other causes of action in tort may arise if the abuse is accompanied by physical aggression or psychiatric or other physical injury.

Direct quotations from the plaintiff may become defamatory if they are presented in a context which has the effect of inviting reasonable right-thinking viewers or readers to draw inferences about the plaintiff which lower him or her in their estimation.

Public Persons

A person's moral character in either a private or a public capacity is equally entitled to the protection of the law from defamatory attacks. In an action for libel for an alleged charge of personal corruption against a public person there is no distinction to be drawn between a right to be protected in one's public capacity and as a private citizen. If the allegations are proved, the mere fact that the plaintiff is holding a public office affords no defence.

Crime

Words imputing that a plaintiff has committed an offence which can subject him or her to imprisonment as a punishment are actionable whether the alleged offence is a breach of criminal legislation or of provincial penal enactments. It makes no difference whether a judge may impose a fine in addition to or as an alternative to the imprisonment; if the offence is only punishable by a fine or if the offender has the right to escape imprisonment by the payment of a sum of money, the statement is not one imputing crime, and proof of special damage is necessary to make a statement actionable if it is a slander. Words imputing conduct not constituting a crime are not an imputation of criminality, even if the conduct resembles a crime.

Principles of Interpretation - ‘Natural and Ordinary Meaning’

Before a court can decide whether words are defamatory, it first must decide what the words mean. Although a number of rules have been developed to guide this process of interpretation, none permits a purely mechanical approach to the issue. Prima facie the meaning to be attributed to words is the natural and ordinary one.

Differing Interpretations

One group may consider a statement innocuous that another considers defamatory. The diversity of beliefs and values in society may preclude the application of a single standard of “right-thinking people”. It may be sufficient to found liability if an allegation is calculated to arouse adverse feeling in a substantial and respectable group of the community. On the other hand, the enormous variation within the readership of a mass circulation newspaper is one justification for using the single standard of the “ordinary reader of that newspaper”. The courts have not finally committed themselves to any single test for resolving this, although the “right thinking person” test continues to predominate.

Innuendo

An innuendo is where the extended defamatory meaning of the words arises from inference or implication. An innuendo may be based on a meaning that is inherent in the words themselves, or on some extrinsic facts that make otherwise innocent words defamatory. These two distinct situations are frequently referred to as false innuendo and true innuendo.

A true or legal innuendo only exists if the extended defamatory meaning arises from facts known to the recipients of the words published but passing beyond general knowledge. As such, the plaintiff must plead the special meaning he or she contends the words to have and prove that the facts upon which that meaning is based were known to at least one of the persons to whom the words were published. The meaning resulting from those facts gives rise to a cause of action separate from that, if any, arising from the words in their ordinary and natural meaning because it is an extended meaning not present in the words themselves. Both the natural meaning and an innuendo may be pleaded in the same case.

Whether or not the words are defamatory in their natural and ordinary sense, it is always open to a plaintiff to allege by an innuendo that those to whom the words were published understood them in some secondary sense. The plaintiff may allege that the matter complained of was used in a defamatory sense, specifying the defamatory sense without alleging how the matter was used in that sense. The pleading is put in issue by the denial of the alleged defamation, and if the matter set forth, with or without the alleged meaning, shows a cause of action, the pleading is sufficient. The plaintiff need not prove the whole of the innuendo, but he or she must prove the gist of it.

In order to succeed in a defamation action, the plaintiff must prove that the defamation referred to him or her. It is not necessary that the defamatory matter refer to the plaintiff by name. The defendant is liable if the alleged libel was so published by the defendant that the world would apply it to the plaintiff. Conversely, even if the defendant had the plaintiff in mind when making use of the defamatory language, the action must fail if the words used were not such as to convey to the audience the idea that they were aimed at the plaintiff.[

Every republication of a defamation is a new publication and gives rise to a separate cause of action. This is equally true whether the republication is by the person who originally uttered the defamation or by some other person. At common law, every sale or delivery of every copy of a publication is regarded as a separate publication.

It is not a defence that the defendant merely reported a rumour. Neither can a defendant escape liability by showing that he or she was merely repeating a statement authored by someone else and that he or she mentioned that authorship at the time of making the statement in question.

Mitigation of Damages

In an action for defamation in which the defendant has pleaded a denial of the alleged defamation only or has suffered judgment by default, or in which judgment has been given against the defendant on motion for judgment on the pleadings, the defendant may give in evidence, in mitigation of damages, that he or she made or offered a written or printed apology to the plaintiff for the defamation before the commencement of the action or, if the action was commenced before there was an opportunity of making or offering the apology, as soon afterwards as the defendant had an opportunity.

In order to mitigate damages, any apology offered or made to the plaintiff must amount to a full and frank withdrawal of the charges conveyed and should be worded so that an impartial person would consider it reasonably satisfactory in all the circumstances.

In Ontario, a full and fair retraction of any matter alleged to be erroneous must be published either in the next regular issue of the newspaper or in any regular issue of it published within three days after the receipt of the notice of action and be published in as conspicuous a place and type as was the alleged libel, or be broadcast either within a reasonable time or within three days after the receipt of the notice of action and be broadcast as conspicuously as was the alleged libel. The limitation to recovering only actual damage does not apply to the case of a libel against any candidate for public office unless the retraction of the charge is made in a conspicuous manner at least five days before the election.

The purpose of an apology is to appease the injured feelings of the person defamed and to undo the harm done to his or her reputation in consequence of the publication. Although some legislation refers to the retraction and apology as separate elements or refers only to a retraction, they are commonly encountered together. An apology should invariably include a full and frank withdrawal of the charges or suggestions conveyed and, if it is to be regarded as adequate, some expression of regret that those charges or suggestions were ever published.

A retraction must be as conspicuous as the libel itself, but not as conspicuous as the entire original article in which the libel appeared.

Justification

The law will not permit a plaintiff to recover damages in respect of an injury to a character which he or she either does not, or ought not, to possess. Justification, or truth, is a complete defence.

The law presumes in favour of the plaintiff that the words complained of are false, and the defendant must disprove this. Justification must be as broad as the defamatory imputation itself. The defendant must prove the truth of all material statements contained in the libel. It is the imputation contained in the words that must be justified, not the literal truth of the words.

Fair Comment

A fair comment on a matter that is of public interest or is submitted to public criticism is not actionable, even if it is defamatory. The right to fair comment is one of the aspects of the fundamental principle of freedom of expression, and the courts are zealous to preserve it unimpaired. The jury are the guardians of public comment as well as of private character. It is only on the strongest of grounds that a court will set aside a verdict for a defendant when fair comment is pleaded.

The defence of fair comment requires the defendant to establish that: (a) the words complained of are recognizable by the ordinary viewer as comment, although the comment may consist of, or include inferences from, facts; (b) the comment is based on true facts set out in the article or broadcast or clearly indicated in it; (c) the comment is on a matter of public interest; and (d) the comment is one which a person could honestly make on the facts proven, and some authorities indicate must, at least if it imputes dishonourable motives, be fair, in the sense that a fair-minded person could believe it.

The defence fails if the plaintiff shows that the defendant was actuated by express malice. It is here that the question of actual belief in the comments made becomes an issue.

“Comment” does not mean merely “opinion”. Comment is something which can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, or the like. Fair comment protects only comment or opinion; it does not protect statements of fact.

Fair comment must be a comment on a matter of public interest. In general this consists of two broad categories: matters in which the public in general has an interest, and matters submitted to public attention and criticism. Matters of public interest are very numerous. It is a matter of public interest on which everyone is entitled to make fair comment whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others. “Public interest” is not to be confined within narrow limits.

Burden of Proof

The burden is on the defendant to prove the truth of the facts upon which the comment is based. The defendant must also prove that the subject-matter is one of public interest, that the words are a fair comment on it, and that the views expressed are ones which could honestly be held. The plaintiff has the burden of proving malice.

Source: Canadian Encyclopedic Digest.

[Disclaimer: The foregoing is provided as a summary and a service. The laws of defamation can be very complex. If you are concerned that a post or comment may defame someone, please speak with a lawyer and do not rely on this post. As a lawyer, I just had to do the lawyer thing and say that. For my own protection you understand. Don’t wanna get sued, after all. There are a lot of litigious people out there roaming the blogosphere.]

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Addendum: Kinsella and Bourrie eventually settled out of court.