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September 23 2020

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Justification & responsible communication on matters of public interest

The law protects a person's reputation but this protection can restrict other rights, such as the right to free speech. The law tries to balance these competing rights. Sometimes, even though someone made a defamatory statement that hurt a person's reputation, the law considers other rights more important. The law allows the following defences for a person who makes a defamatory statement.

What are the defences to a defamation lawsuit?
If someone sues for defamation, the most common defences are:

truth (known in law as "justification")
absolute privilege
qualified privilege
fair comment
responsible communication on matters of public interest

1. Truth or justification
A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence if you sue them for defamation.

2. Absolute privilege
There are two main examples of this defence: statements made in Parliament and statements made as evidence at a trial or in court documents. This privilege does not apply if a person repeats their evidence outside a courtroom. This defence also allows the fair and accurate reporting of these statements in the media, such as newspaper reports of a trial. People must be able to speak freely in our justice and political systems without worrying about being sued.

3. Qualified privilege
This defence is where remarks that may otherwise be defined as defamatory were conveyed to a third party non-maliciously and for an honest and well-motivated reason. Say a former employee of yours gave your name to an employer as a reference and that employer calls you for a reference. You say, "Well, frankly, I found that this employee caused morale problems." As long as you act in good faith and without malice, and your statement is not made to more people than necessary, then the defence of qualified privilege protects you if the former employee sues you for defamation. You gave your honest opinion and the caller had a legitimate interest in hearing it.

4. Fair comment
We all are free to comment – even harshly – about issues of public interest, as long as our comments are honest statements of opinion, based on fact, and not malicious. For example, a newspaper columnist may write that a Member of Parliament (an MP) says he supports equality and equal rights, but he opposes same-sex marriages. The columnist writes that the MP is hypocritical. If the MP sues the columnist for defamation, the columnist has the defence of fair comment. Media articles that accurately report what was said at public meetings are also privileged, unless the meeting was not of public concern and the report was not for public benefit.

5. Responsible communication on matters of public interest
In a December 2009 case, the Supreme Court of Canada established this new defence to a libel claim. The court said that journalists should be able to report statements and allegations – even if they are not true – if there’s a public interest in distributing the information to a wide audience. This defense, which looks at the whole context of a situation, can apply if:

the news was urgent, serious, and of public importance, and
the journalist used reliable sources, and tried to get and report the other side of the story.
The court defined “journalist” widely to include bloggers and anyone else “publishing material of public interest in any medium.”

What effect does an apology have?
A newspaper or a TV or radio station that publishes or broadcasts a libel can limit the amount of the damages they may have to pay by publishing or broadcasting an apology right away.

Summary
The law of defamation protects your reputation against false statements. If a person makes a false statement to someone and it hurts your reputation, you can sue the person who made the false statement for damages. But because of other competing rights in our society, such as free speech and fair comment, you will not always win.



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