From time to time, I get hired to pursue defamation claims. For some reason it seems to happen in London and in Sarnia of all places.
Defamation is a broad term, which includes two strands of law, one being slander and the other being libel. Slander is spoken, and libel involves the written word.
Both have similar defences- “truth” being an absolute defence but suffering from the obvious defect that no outsider knows the truth until a trial judge rules that one party’s version of events is the truth.
Another absolute defence, is that afforded to lawyers, for what they say in court or for their court filings (like a Statement of Claim for instance). However, even that is not quite true- under some old case precedents, if the lawyer sent a copy of his pleading to someone by mail, he could lose the protection of that defence, but if he just told the person to go to the courthouse and copy it, he still had that absolute defence.
One common defence, which is similar to the famous broad “fair comment” defence, is the “common interest” defence. For example if the president of a company thought that the junior VP finance was doing a poor job and should be fired, his comments to the VP finance and the head of HR to obtain their views are probably covered by that defence. He would not be covered by that defence if he made his comments over the PA system at the company picnic.
These types of defences can only be defeated if the plaintiff can prove “malice” at trial.
So an interesting issue awaits- what about the person in a club who is contacting other members in the club to complain about the actions of another member of the club. Should he benefit from that privilege? For example, in a tennis club (safe example since Kincardine now is bereft of one), can one email or text other members to ask “have you noticed that Joe Blow is unfair on his line calls”? Should it matter if you are just seeing if your opinion has enough validity to go to the board of directors?
Next time I am wading through the 5 volume loose leaf text on Canadian defamation law, I will try to remember to post any answers to those questions I may locate.