Presentation on Defamation by Lawyer Mark A.B. Donald

Presentation on Defamation by Lawyer Mark A.B. Donald

Summary of presentation to the Philippine Press Club of Ontario, June 24, 2015 at Casa Manila, Toronto

Atty. Mark A. B. Donald

DEFAMATION: WHAT IT IS

The starting point for any discussion of defamation law is an understanding of what “defamation” actually means. Defamation can be divided into two sub-sections: (1) libel (written defamation); and (2) slander (spoken defamation). For the purpose of today’s discussion, we will treat the two interchangeably and simply address defamation as a whole.

To make out a successful claim in defamation, a plaintiff must initially prove three elements to make out a case of per se, or presumptive, defamation:

1. The defendant’s comment must have been published to a third party: the term “publication” at law is broad, and simply means the comment must have been communicated from the publisher to another individual or individuals. Publication can be as limited as a letter sent to single individual, or, a newspaper article that has been sent to millions via the popular press. It is important to note that posts on purportedly “personal” social media websites such as Instagram, Facebook or Twitter may also constitute defamation – the law makes no distinction between a well-known journalist’s article and the online blog posts of a private individual.

 2. The defendant’s comment must refer to the plaintiff: the plaintiff must show that the published comment relates to them in such a way that the average person would recognize the reference. It is not necessary that the plaintiff be referred to specifically by name. Instead, it need only be clear by inference that it is the plaintiff is being defamed. For example, a member of a particular organization may be able to sue for defamation if a journalist were to write or report that the organization itself is “corrupt”. While the individual plaintiff may not be named specifically, their mere membership in the subject organization may create the connection necessary to ground a personal defamation claim.

3. The defendant’s comment must be legally “defamatory”: to prove this third element, the plaintiff must show that the impugned statement would damage their reputation in the eyes of a “reasonable” listener or reader. The “reasonable person” is a creation of the law: a hypothetical member of the publication’s audience. The law defines this person as someone who is thoughtful and reasonably informed. According to the courts, this average person possesses common sense, and is neither naïve nor beset by an overly fragile sensibility.

Virtually any media actor and/or organization may be found liable for defamation using the abovementioned test. Quite often, when confronted with an allegedly defamatory comment, a plaintiff will sue the journalist/author, the newspaper or broadcast station that ran the comment, the publisher of the newspaper and/or the news service that aggregated it. Generally speaking, all of these people or groups are deemed to have “published” an allegedly defamatory article, and therefore all of them may be found liable at law (subject to the very important defences to defamation, discussed below).

DEADLINES FOR BRINGING A CLAIM IN DEFAMATION: THE FIRST LINE OF DEFENCE

One of the ongoing “grey areas” of defamation law is the question of how long a plaintiff has to initiate their legal claim. In Canadian law, these deadlines have been imposed with the philosophy that no presumptive media defendant should have to perennially “look over their shoulder” to defend articles written long ago. This philosophy is especially important in a free and democratic society where we should encourage the media to engage in robust, investigative journalism without fear of perennial legal sanction.

Pursuant to the Limitations Act (the “LA”), the general time limit for most legal actions such as contract disputes or negligence cases is two years from the time that the plaintiff discovered that they had a legal claim. However, in many cases of defamation, this deadline is much shorter and subject to important procedural requirements. Media defendants should be aware of these requirements and be prepared to engage their legal counsel to assert them, if faced with a claim for defamation.

In Ontario, many forms of media publication are covered by the Libel and Slander Act (the “LSA”), which sets out these important limitation deadlines (note that different Canadian provinces have their own similar legislation to the LSA, meaning that lawsuits started in different jurisdictions may have differing deadlines). Take note of the passages of the LSA emphasized below, as these are of particular importance:

First, section 5 of the LSA states that a plaintiff may not bring an action for libel in a newspaper or in a broadcast, unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of. Section 5 goes on to provide that this notice must be served personally by the plaintiff or by delivering it to a grown-up person at the chief office of the defendant.

Second, Section 6 of the LSA holds that an action for libel in a newspaper or in a broadcast must be commenced within three months after the libel has come to the knowledge of the plaintiff.

However, that provision goes on to state that where such an action is brought within that three-month period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action. In short, this latter portion of section 6 provides that if the plaintiff is being continually defamed by the same media outlet, they may reach back in time and include claims for defamation over the previous year that they may not have decided to act upon originally.

However, there is presently debate in the courts over the types of media publications to which the LSA applies. Section 7 of the LSA states that the limitation periods in sections 5 and 6 apply only to newspapers “printed and published in Ontario and to broadcasts from a station in Ontario”. Where the LSA does not apply (i.e. generally in the case of private communications like letters and personal emails), the LA’s longer, two-year limitation period would usually govern plaintiff’s seeking to bring a defamation claim. Therefore, the question of whether the LSA applies to a particular publication cannot be overstated: if it does apply then the media defendant will have the benefit of a shorter limitation period in which the plaintiff must first issue a notice of libel and then start its legal action.

The legal debate arises over exactly what it means for a newspaper to be “printed and published in Ontario”, or, and for a “broadcast” to be “made from a station in Ontario” pursuant to section 7 of the LSA. Generally speaking, here’s what we know about the LSA’s application to various forms of media:

In any event, the media should be using the LSA’s procedural deadlines under sections 5-7 to its advantage whenever confronted by a presumptive plaintiff in a defamation matter. If a media outlet (1) does not receive a notice of libel within six weeks of an impugned publication; and/or

(2) notices that a legal action was not commenced within three months of the publication, then this fact should be a key element of any legal defence. Indeed, even freelance journalists and bloggers for whom the LSA’s application is uncertain should be aware of these provisions as they will function as a procedural bulwark against plaintiffs seeking to advance their claim. While the law on this point may presently be indeterminate, it only takes a single court decision to decide that the LSA does, in fact, apply to such non-traditional media sources.

Watch out for unspecified claims of defamation: from a practical perspective, one other possible defence for the media is a lack of specificity in the original section 5 libel notice. Especially in the case of self-represented plaintiffs, there is a tendency for libel notices to baldly describe a certain article as defamatory without actually stating which particular statements give rise to a defamatory meaning, or what that defamatory meaning actually is. As such, media defendants should be aware that if a plaintiff’s imprecise notice of libel may not stand up to scrutiny by a court seeking to ensure that section 5 of the LSA was properly adhered to, thereby barring the plaintiff from advancing its claim.

THE DEFENCES TO DEFAMATION CLAIMS: WHERE THE TRIAL IS USUALLY WON OR LOST

Assuming that the plaintiff has satisfied the procedural elements of the LSA, the media defendant must then turn to consider how to actually defend the substance of the defamation claim. It is important to note that in the vast majority of defamation cases, the determining factor is not whether an article or broadcast was (1) published, (2) referred to the plaintiff; or (3) was legally defamatory (i.e. the test described above). The plaintiff is usually successful in making these elements out. Instead it is the legal defences to the plaintiff’s claim that are usually the determining factor to the case’s outcome.

At this second “defence” stage, the onus of proof shifts to the media defendant to show that, even though the published statement may have satisfied the test for per se defamation, the defendant is nevertheless able to prove a common law defence. It is at this point where most defamation claims are won or lost.

Being prepared to argue this stage of a defamation lawsuit begins before the story is even published. Media lawyers are inevitably asked the same question by their clients prior to publication: “How to I stop a plaintiff from bringing a defamation claim against me?” The simple answer to this question is that there is no way for a lawyer to “stop” a defamation claim from being issued. Rather, the role of the media defence lawyer in the pre-publication phase is to ensure that: (1) the media outlet has done the necessary due diligence in researching their stories; and (2), that the language and tone used is appropriate to the facts of the article and the meaning that the publisher is attempting to convey to its readers or viewers. The defence lawyer’s job is to use their expertise to insulate the publication from defamation claims as much as possible prior to publication by bringing it into line with the various defences available. Practically speaking, it is not uncommon for defence counsel to plead a range of defences in the event that any one of them might not be successful.

With this in mind, media outlets should be retaining legal counsel as soon as in order to discuss and refine controversial articles before they are published. Some of the more important defences for media defendants are described below:

1. The defence of truth/justification

Just as it sounds, this defence exonerates a media defendant who can prove that the content of a defamatory statement is “substantially true” at law. This is generally a high onus to satisfy for any defendant, though, it should be noted that the relevance of this defence has been diminished by the arrival of the much more powerful reasonable communication defence (described below). Nevertheless, the practical due diligence measures that inform the defence of truth/justification should be adhered to by any media defendant, if only because these measures correspond with the traditional standards of ethical journalism and may therefore offer comfort to the court should a defamation action be initiated.

Practically speaking, Journalists, editors and their legal counsel should regularly meet and discuss potentially defamatory stories that they intend to run. The more collaboration that occurs, the greater likelihood that a news outlet will be able to critically assess the evidential support for a story and subsequently determine whether or not it is substantially true and ready for print. Amongst other things, the media outlet should be asking itself:

* who are your sources: are they independent and unbiased or simply people with an “axe to grind”?

* are these sources on or off the record?

* what has been done to corroborate these sources? What back-up documents have been obtained? Are these documents convincing?

2. The defence of qualified or absolute privilege

The privilege defences are available to defendants on the basis of either: (1) their position or occupation in society; or (2) important occasions upon which certain persons are entitled to make a defamatory statements to select recipients on matters of public importance.

For reasons that are beyond the scope of this presentation, journalists and newspapers have only rarely been able to avail themselves of these defences. Nevertheless, sections 3-4 of the LSA carve out special privilege defences for journalists who report “fairly and accurately” on a range of meetings and proceedings of public importance, including court proceedings (that are not subject to a court-imposed publication ban).

The meaning of “fairness and accuracy” is simple: a journalist must report the whole truth and nothing but the truth. It is important for journalists to ensure that their editorials or articles do not imply an outcome to an event that has not, in fact, occurred. Moreover, it is good practice to make sure that the positions of all the players in a contentious proceeding are made clear so that readers/viewers may fully appreciate the debate in question. In sum, a responsible news outlet should not report on a proceeding in a manner that would leave a reader believing that the negative imputations made about a party were greater than what actually transpired (in legal terms: the reputational “sting” of the article cannot exceed what was actually stated at the proceeding).

3. The defence of fair comment

The purpose of this defence is to permit the media to report or opine on matters of public interest in a robust manner without forcing them to be held to a standard of stylistic blandness or complete factual perfection. As will be observed, this defence requires that an allegedly defamatory statement be presented as opinion as opposed to fact. In practical terms, this means that it will usually be easier to employ the fair comment defence for editorial columns or cartoons that contain loose or hyperbolic language and meanings. In contrast, the defence will usually be more difficult to make out for front page news stories which tend to present themselves as pure fact.

The defence of fair comment requires the following elements to be proven:

i. the comments made are on a matter of public interest;

ii. the comments are based on true facts, noting that the omission of relevant facts might amount to misstatement;

iii. the comments, though they can include inferences of fact, must be recognizable to the reasonable reader as comment;

iv. the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts; and

v. even though the comment satisfies the abovementioned elements, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by “express malice” (explained below).

Whether the defence of fair comment can be made out usually comes down to point (iii.), whether the statements are recognizable as “comment” as opposed to fact. This is a very complex analysis, and requires a court to look at the totality of the circumstances and context surrounding the comment on a case-by-case basis. The courts have regularly held that words which may appear to facts may actually be properly construed as comment under the circumstances. In deciding whether a statement is factor comment, a court look at factors including: the language used in the comment, the medium in which it was circulated, any cautionary terms that were used, and the audience to whom it was published.

4. A word on malice

Once a media defendant has asserted the defences of qualified privilege or fair comment, the plaintiff has the opportunity to advance the argument that these defences – even if they are 7

successful – should be rendered inoperative because the defendant acted with “malice” as their primary purpose in publishing (malice forms no part of the responsible communication defence, described below, since a media defendant who has reported responsibly cannot, by definition, be actuated by malice).

In our general parlance, “malice” means spite or ill-will towards a person. At law however, the media should be aware that it means something far broader. The courts have stated that legal malice exists if a plaintiff can prove any of the following elements: (1) the defendant did not honestly believe what he or she said was true; (2) the defendant published the statement in knowing or reckless disregard for its truth; (3) that the defendant’s dominant purpose was injuring the plaintiff because of spite or animosity; or (4) that the defendant’s dominant purpose was improper or indirect motive aside from expressing an honestly-held opinion. The media should always be aware that in the context of legal malice, “recklessness” includes speaking in disregard for the consequences, without caring about truth or falsity, or without having made reasonable inquiry where the means or sources were readily available. Malice may also be found when a defendant is reckless by deliberately refraining from making an inquiry as to the truth of a statement.

The media’s best defence to charges of malice in publication are similar to the measures described above: (1) robust fact-checking mechanisms; and (2) frank and honest discussions about the strengths and weaknesses of a story before it is published. Where these two elements are absent, a court may find that the media defendant was malicious through either recklessness or the pursuit of ulterior motives (i.e. personal animus towards the subject of an article, or, simply trying to get a scoop at all costs). If this occurs, the defendant will be barred from availing themselves of the defences of privilege or fair comment.

5. The defence of responsible journalism on a matter of public interest

This is a relatively new defence in Canadian law, having only been imported from in the English common law by the Supreme Court of Canada in 2009, in a case known as Grant v. Torstar. In the speaker’s opinion, this defence should form the backbone of for any media outlet’s defence to a defamation claim. Just like any other defence to defamation, the due diligence needed to lay the groundwork for the responsible communication defence will begin by consulting internally and externally with legal counsel before any story is published. The defence has two elements, with the latter usually being of greater importance:

i. The first question is whether the comment is on a matter of “public interest”. This is usually a fairly easy threshold for a media defendant to meet, as the courts have taken a broad view of just what issues are in the public interest. This includes governmental and political issues as well as any issue that the public has a genuine stake in knowing about. The courts have opined that the public interest can also encompass matters, ranging from science and the arts to the environment, religion, and morality. It should be noted however that some courts have stated there is a line to be drawn where the matter reported has no meaningful public interest dimension, and instead resembles gossip.

ii. The second question is whether a comment made on an issue of public interest was made “responsibly”. As shall be seen, the various factors that a court will look at in determining this element bear some resemblance to the emphasis placed on due diligence and fact-checking as mentioned earlier. What is also important to know about the following factors is that they are not a checklist that a court will review one by one. Instead, they form a set of guidelines that will have greater and lesser importance based on the circumstances surrounding each published statement. Nevertheless, the elements described below should each form a constant touchstone for any media outlet preparing a controversial story for publication:

• the seriousness of the allegation: the more serious and damaging the allegation, the more due diligence will be required in researching and verifying the story;

• the public importance of the matter: the courts have stated that not all public interest statements are equally important. For example, stories touching upon national security issues will likely require greater due diligence efforts;

• the urgency of the matter: the courts are alive to the media’s need to file timely reports. However, a court will likely look dimly upon inaccurate stories where a reasonable delay would have led to more accurate reporting;

• the status and reliability of the source: the courts have said that if sources are untrustworthy or biased, the media must be more diligent in verifying information. Confidential sources are acceptable, but the court will enquire whether it was reasonable to employ them in the circumstances;

• whether the plaintiff’s side of the story was sought and accurately reported: while it is not always possible to contact the subject of a defamatory comment, the media must show an effort to be fair and to get both sides of the story. On a practical level, this would involve keeping detailed records of the times that a reporter reached out to contact the subject for their comment via phone, email or personally;

• whether the inclusion of the defamatory statement was justifiable: quite simply, a journalist should ask themselves whether the defamatory statement really needs to be included in the article. The statement must be relevant to the story, but the courts have said that “generous scope” should be given to editorial choices made in the newsroom;

• whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (the “reportage” element): this element recognizes that the public may have an interest in the back-and-forth of important debates regardless of their actual truth. In this element, the reporter would assist their cause if: (1) the defamatory statement is attributed, preferably to a named source; (2) the report indicates the statement has not been verified; (3) both sides of the dispute are reported accurately and fairly; and (4) the reporter makes clear the context in which the statement was made (i.e. in the context of a heated public exchange between two rival political candidates); and

• any other relevant circumstances: this is a catch-all provision for other aspects of the story, including its tone. The courts have held that newsrooms “will not be held to a standard of stylistic blandness”, but again, news outlets should think critically as to whether the tone of the article imputes something to the subject that may go beyond the real “sting” of issue being reported upon.

SUMMARY: SOME BEST PRACTICES FOR THE MEDIA

• Media newsrooms should adopt a detailed internal best practices/due diligence policy that incorporates the factors and considerations outlined in this presentation;

• Every key department of a newsroom should work together, from the editor down to the beat reporter to explore and debate whether the requisite due diligence requirements have been met before a story is published. These discussions should include the news outlet’s legal counsel where necessary; and

• News outlets should critically assess the use of strong adjectives and hyperbole in headlines, lead lines and stories themselves to ensure that an accurate, defensible meaning is being conveyed. Based on the author’s experience one regular pitfall for writers is a tendency to equate purportedly negligent conduct with misfeasance (i.e. where a story accusing an individual of poor financial management goes a step further and implies that that individual may be guilty of theft). Outright misfeasance is usually harder to prove and newsrooms should therefore use best efforts to make sure that such charges are supported by cogent evidence.

Note: this article is a general survey of the law and expresses Mr. Donald’s personal views on the subject matter discussed. It is not a substitute for, nor does it constitute legal advice. Viewing this article does not create a lawyer-client relationship.

Mark A.B. Donald
Lawyer, mf-law
Email: mark@mf-law.ca
Phone: 647-352-8489
LinkedIn: https://www.linkedin.com/in/markdonald1
Blog: https://medium.com/@MABDLaw
Website: http://mf-law.ca/lawyers.php