Spilling the Tea: Defamation and the Defence of Qualified Privilege

By Royal Morton & Bridget Shebib

In a world where a simple click can send your thoughts echoing through cyberspace, the power of sharing information—both good and bad—has never been greater. And as Aunt May said: “With great power there must also come great responsibility.”

Ever heard of defamation? It’s Teatime’s dark side. If you post something about someone else that tends to lower or harm their reputation in the eyes of “reasonable people” then that’s “defamatory.” Heads up: You can get sued for dishing the dirt.

Before you retreat to your digital cave, the courts have carved out exceptions or defenses to the tort of defamation in an effort to balance the right to freedom of expression with the undeniable value associated with our reputations. These defenses include justification (truth), fair comment, responsible communication, absolute privilege and qualified privilege.

Let’s talk about “qualified privilege.”

In certain circumstances of “qualified privilege” you can say/post otherwise defamatory statements about someone else. The British Columbia Supreme Court described qualified privilege as follows:

Qualified privilege is founded in the public interest to promote the giving and receiving of frank and uninhibited information from particular sources in circumstances where the public interest requires that free exchange…the privilege arises where the occasion is such that the community benefits from the fact that the communication may be freely made.^[1]

A “privileged occasion” has been defined by the courts as:

… an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential.^[2]

Essentially, you need to prove that you had a solid reason to share the statement with the recipient and in turn, they had an interest in hearing it. However, your belief that you were duty-bound won’t cut it if it’s just you who believes it. As the British Columbia Supreme Court has indicated, the test is objective:

The issue is not whether the defendant had a right to make the communication or thought that he or she had a duty to make it, but rather whether a reasonable person would feel compelled by a duty to make the communication.^[3]

However, proving qualified privilege isn’t the end of it. If your tea was served with a heaping spoonful of malice (i.e., saying something out of spite, or where you knew the statements were false or were recklessly indifferent as to their truth), the law won’t be on your side.

As the Supreme Court of Canada has explained, the

…legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. When the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish… However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice.^[4]

Also, if you shared more than you needed to, the law won’t be on your side either. The Supreme Court of Canada used the case of Trucker v Douglas, [1952] 1 SCR 275 as an example where the defendant’s comments went beyond what was “germane and reasonably appropriate.”^[5]

Conclusion

With defamation claims, the truth isn’t always enough, and good intentions won’t save you if you overstep your boundaries. So, before you spill the tea or beans, think twice.

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^[1] B(P) v E (RV), 2007 BCSC 1568 at para 339 citing Sapiro v Leader Publishing Co (1926), 20 Sask LR 449 (SKCA). More recently cited in Dong v Hofer, 2018 BCSC 77 at para 92.

^[2] Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 143 citing Adam v Ward, [1917] AC 309 (HL) at p 334.

^[3] B(P) v E (RV), 2007 BCSC 1568 at para 344 citing Halls v Mitchell, [1928] SCR 125 at 134.

^[4] Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 144.

^[5] Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 150.

While navigating and understanding your legal rights or responsibilities in the context of a defamation claim can feel overwhelming, the Dispute Resolution and Commercial Litigation Department at McQuarrie is here to help.

Please feel free to contact us with any questions or concerns you may have related to your defamation claim or defence.