We have previously written about the tort of defamation and some of the defences that can be raised against such a claim, such as absolute privilege and fair comment. In this post, we explore the defence of qualified privilege and how to establish it successfully.
The Law of Defamation
In a defamation claim, a plaintiff must establish that:
- The defendant made defamatory statements – that is, that the words used would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
- The words referred to the plaintiff; and
- The words were communicated to at least one person other than the plaintiff (see the recent case of Smith v. Nagy). The plaintiff in a defamation suit does not need to show that the defendant intended to cause harm or was careless, since defamation is a strict liability tort (see Smith).
Once the plaintiff has prima facie made out their case, then “falsity and damage are presumed” (see Grant v. Torstar Corp.). The onus then switches to the defendant to successfully raise a defence to the claim. In this blog, we will be considering the defence of “qualified privilege.”
What Is the Defence of Qualified Privilege?
The defence of “qualified privilege” is a privilege that attaches to a particular occasion upon which a communication is made, rather than to the communication itself (see Bent v. Platnick). An occasion will be deemed privileged where the person who makes the communication has “an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” (see Bent). That interest may be a public or private one “and may involve the conduct of the person’s own affairs where his or her interest is concerned” (see Tibbles v. Gloster). The person receiving the communication must also have a corresponding interest or duty in receiving it.
It has been suggested that the test to apply in determining whether an occasion is one of qualified privilege is whether right-minded people in the same circumstances would have thought it was their duty to communicate the information in question to the person who received it (see Magno v. Balita). In other words, the test is objective.
If an occasion is found to be privileged, then the defendant will be found free to have published the communication on that occasion with impunity. This is so even if the communication in question was defamatory and untrue about the plaintiff (see Bent).
The defence is named “qualified” privilege because it can be defeated in two situations: first, if the “dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken,” and second, “where the scope of the occasion of the privilege was exceeded” (see Bent).
It is important to note that the defence of qualified privilege concerns matters other than free expression. It is grounded in “the social utility of protecting particular communicative occasions from civil liability” (see Bent). As explained in Grant, the defence is a recognition that “common convenience” and the welfare of society sometimes require “untrammelled communications.”
When Will an Occasion Be Subject to Qualified Privilege?
As mentioned above, the starting point for a consideration of the defence is the characterization of the occasion on which the impugned communication is made. Once characterized, the occasion “becomes impressed with the limited, qualified privilege, which in turn becomes the benchmark against which to measure whether the occasion was exceeded or abused” (see Bent).
Case law has recognized various contexts as giving rise to an occasion of qualified privilege, though it must be remembered that each case is fact-specific. For example, in Martel v. City of Ottawa and DeLoyde, the Superior Court of Justice observed that qualified privilege can arise in a contractual context, where one party is obligated to provide information to the other. Likewise, a commercial and business relationship “can give rise to a social duty to make a communication.” The Court in Martel notes, for example, that where a municipality receives services from a company, it may have a duty to inform that company “of any actions by its employees which affect that business relationship.”
The Court went on in Martel to indicate that “business to business communications are recognized as a privileged occasion.” The common law has also recognized the importance of privileged communication in the context of construction projects (see Martel).
It has also been previously held that qualified privilege applies to communications by union members to other members of that union “concerning the union’s affairs and the activities or actions of executive members” (see Weisleder v. OSSTF). Qualified privilege may also attach to occasions in which complaints are made to a plaintiff’s employer (see Martel).
How Can the Defence of Qualified Privilege Be Defeated?
As noted above, the defence will be defeated if the dominant motive behind the communication was malice or if the scope of the privileged occasion is exceeded.
Malice can be established by evidence showing that a defendant was aware they were not telling the truth or was reckless in doing so. Recklessness does not generally mean jumping to conclusions or making statements based on “insufficient evidence,” if the person making the statement believes that statement to be true. It generally means being indifferent to the “truth or falsity” of the statement (see Weisleder).
It has also been held that disliking someone is not sufficient to prove malice. Instead, it is only if a defendant’s wish to comply with their duty or protect their interest “plays no significant part in his motives for publishing what he believes to be true” that a court can make a finding of express malice (see Weisleder). Likewise, malice may not be found where there is evidence that a defendant’s dominant motive was to defend their reputation in reaction to a communication by a plaintiff, although there are limits on this.
The scope of the privileged occasion may be found to be exceeded where the communication in question is not necessary to fulfil the duty that gave rise to the privilege, where the information communicated is not relevant to the discharge of the duty “or the exercise of the right giving rise to the privilege,” or where the information communicated “is not reasonably appropriate to the legitimate purpose” of the occasion (see Bent).
Authority also exists to find that publication on the internet to the “world at large” may exceed qualified privilege, since a “reciprocity of interest is required” between the person making the communication and the one receiving it (see Magno). This is particularly important in the context of cyber libel and the publication of defamatory comments on social media.
Contact Milosevic & Associates in Toronto for Skilled Representation in Defamation Claims
If you are facing a defamation claim or believe your reputation has been harmed by defamatory statements, experienced legal guidance is essential. The defamation, libel, and slander lawyers at Milosevic & Associates regularly advise clients on claims involving qualified privilege, cyber-libel, and reputation management. Our team assists businesses, professionals, and individuals with evaluating potential defences, assessing liability risks, and pursuing or defending defamation claims in court.
We provide strategic, practical advice designed to protect our clients’ reputations and legal interests. To book a confidential consultation, please contact us online or call (416) 916-1387.