October 25, 2024
I Have Been Sued for Defamation. Now What?
Defamation is a nuanced area of law and it’s important to retain a lawyer who understands the intricacies of defamation to defend the claim against you.
Your lawyer will be able to conduct an analysis of whether the plaintiff’s defamation claim has any merit and, if so, the strength of your defences to the claim brought against you.
Defences to a Defamation Claim
If the plaintiff can demonstrate that you communicated a statement to a third party about them that would likely lower their reputation in the minds of right-thinking members of society, it will be up to you (and your legal team) to prove that you have a defence.
The most common defences[1] to defamation are:
1) Truth/Justification: Truth is a complete defence to defamation. To successfully use this defence, you must prove, on a balance of probabilities, that the impugned words were substantially true.
It is important to consider that, while what you communicated might be true, to avail yourself of this defence, you are required to prove that it is true. Therefore, the strength of the truth defence will depend on what evidence you have to support the statements you made.
2) Qualified Privilege: Certain situations give rise to qualified privilege. To invoke this defence, you must show that there was a reciprocal duty for you to communicate and the recipient(s) to receive the statements.
For example, a school principal may send a letter to a student's parents informing them that their child has been bullying other students. The communication is defamatory of the student. However, because the principal has a duty to report to the parents about their child and the parents have a corresponding duty to receive that information, this occasion gives rise to qualified privilege.
Similarly, complaints made to the police are often protected by qualified privilege.
However, this defence can be defeated if:
a. The defamatory statement was shared with individuals who had no duty to receive it. For example, if a nurse reported defamatory information about a patient to a doctor (which would attract privilege), but also to several friends of his, the scope of qualified privilege is exceeded.
b. The defendant includes irrelevant defamatory remarks. If a defendant, asked to respond on a specific subject, uses the opportunity to make unrelated defamatory statements about the plaintiff, they exceed the privilege's limits.
3) Fair Comment on a Matter of Public Interest: This defence protects opinions on matters affecting the public, such as politics, provided the opinion is based on true facts. To succeed, you must prove that the statement (1) relates to a matter of public interest; (2) is based on true facts; (3) is recognizable as an opinion, not a statement of fact; and (4) is an opinion that could reasonably be expressed based on those facts.
4) Absolute Privilege: In certain situations, absolute privilege applies, meaning no defamation claim can be brought. These include:
a. Statements made in parliamentary proceedings;
b. Statements made in judicial or quasi-judicial proceedings; and
c. Fair and accurate reports of court proceedings, without added commentary.
If you are able to prove any of these defences, the burden shifts to the plaintiff to prove malice.
Malice
The defences of qualified privilege and fair comment can be defeated if the plaintiff proves you made the statement maliciously. Malice arises if:
a. The dominant motive for publishing the statement was spite or ill will;
b. The dominant motive was to pursue an ulterior purpose (e.g., a business owner falsely accuses a competitor of illegal activities to drive them out of business); or
c. You knew or ought to have known that the statements were not true.
Things to Know About Defending a Defamation Claim
You have 20 days from the date you’re served the Statement of Claim to file your Statement of Defence (if you’ve been served in Alberta). If you intend to retain counsel, do so without delay.
Failure to file a Statement of Defence may mean that you may have default judgment granted against you.
About the Author
Andrea MacLean is an associate at JSS Barristers whose practice focuses on defamation. She has experience handling a wide range of matters and representing both plaintiffs and defendants. If you have been sued in defamation, please contact Andrea at macleana@jssbarristers.ca or 403-571-1509.
[1] There are other defences, but these are the most common.
Please note that JSS Barristers insights are provided for informational purposes only. They are not intended as legal advice or a legal opinion. Please contact authors or JSS Barristers if you would like to obtain legal advice on this or other legal issues.