THE LAW OF DEFAMATION & POLITICS

Presented by:

Tara R. Britnell and Stephen D. Ballard

1. What is Defamation?

   1. Definition

      1. Defamation consists of any written, printed or spoken words or of any audible or visible matters or acts which cause injury to a person’s reputation.

   2. Purpose

      1. The law of defamation attempts to strike a fair balance between the protection of reputation and the protection of free speech. In B.C., the Libel and Slander Act is the governing statute on defamation.

2. General test

   1. Would most “right-thinking” people think the words lowered the person’s reputation?

   2. Have the defamatory words been published? Publication means that someone other than the injured person hears or reads the words.

3. Two Types of Defamation

1. Libel:

   1. This is written defamation. If the injured person sues, he or she doesn’t have to prove that the defamation caused them any monetary damages.

2. Slander:

   1. Slander is oral defamation. It includes spoken words, sounds, looks, signs or gestures. If the injured person sues, he or she must show that they suffered damages. This doesn’t mean emotional damages, like stress or humiliation. It means that the injured person must be out of pocket, such as when customers stay away from his or her business because of the defamatory statement. Such damages can be quite difficult to prove.

1. Defences:

   1. Truth: if the statements are true, that is a complete defence.

   2. Fair comment: if the statements are opinions rather than assertions of fact, and the opinions are based on true facts, and are sincerely believed, that is a defence.

   3. Qualified and Statutory Privilege: If someone has a duty to communicate the statement.

   4. Absolute Privilege: Certain circumstances, like statements made in court, are deemed by the law to always protect the speaker from defamation.

   5. Consent: If the injured person consented to the defamatory statement.

2. Malice

   1. Malice defeats some of the defences, like fair comment and qualified privilege. It can also increase the damages.

   2. Malice means that the speaker intends to cause harm to the injured person.

   3. This can also be difficult to prove. If the speaker knows that the statements are false, and the dominant purpose of the speech was improper, the speech will be malicious.

3. Defamation in the Political Arena

   1. Statements Concerning Public Figures or Political Candidates

The law will tolerate severe criticism of public persons. This is because the public and press must be free to express its views and comment on local and national political issues and the qualifications and merits of political candidates. This is indispensable to the exercise of political freedom.

2. Statements by Government Officials

Government officials normally enjoy absolute privilege when communicating with other government officials or representatives, as long as they’re doing so within the scope of their jobs.

3. When a person becomes a candidate for public office, his qualifications and fitness for office may be freely discussed and criticized. So long as the comments and criticism is made in good faith and without malice, the court will not convict the speaker of defamation. However, the criticism must be reasonable.

Example of “Limits” on Defamation in the Political Arena:

1. Douglas v. Tucker, [1952]:

   The Premier made allegations of fraudulent conduct by the leader of the opposition to a newspaper. The Premier maintained that the expression was protected by qualified privilege. The Supreme Court of Canada held that the privilege was lost by virtue of the fact the comments went beyond those reasonably germane and that the publication to the world was unduly broad.

1. Derrickson v. Tomat (1992):

   The court suggested that courts exercise restraint in awarding damages to a politician for politically motivated defamation generated in the heat of political controversy. However, it has been held that such restraint does not apply to defamation of civil servants.

1. Effect of an Apology or Retraction

   1. Apology

      1. An apology is a statement of remorse or regret for publishing defamatory expression and for its consequences in terms of injury or damage to the plaintiff. An apology can reduce or eliminate damages.

   2. Retraction

      1. A retraction withdraws the defamatory imputation. Section 7 (d) of the Libel and Slander Act speaks of a “full and fair retraction.” This limits damages to the actual out of pocket expenses, but the defamer will still have to pay damages for the loss of reputation.

2. Do’s and Don’ts:

   1. Check for insulting statements in your speech. The insult need not be there in black and white – it’s also defamatory if an insulting inference can be drawn

   2. If there is anything insulting in your speech, make sure it’s true. You might not know yourself if it’s true. If you’re relying on someone else’s assertion that it’s true, try to get a second source. People make mistakes.

   3. If there is an insulting opinion in your speech, make sure it’s based on true facts, and that it’s an opinion you actually hold.