Thursday, May 31, 2012

If You Can't Say Anything Nice...

Your mother always told you, "If you can't say anything nice, don't say anything at all."  That's a good life lesson for living in a civil society and getting along with others.

It's also a good way to avoid getting sued for defamation.

Defamation law is something that occasionally overlaps with employment law.  I have had cases (on both sides of the fence) where the employer has been accused of defaming a departing employee to other potential employers and/or to industry clients.  That being said, the extent of the paranoia many employers have about giving references is a little extreme.  The majority of such cases involve scenarios where the employer (through one of its agents) goes out of its way to communicate the defamatory message to third parties.  Sometimes it's just a rogue supervisor acting out of spite; sometimes it is an employer acting in a measured manner to control its own liabilities for the employee's misconduct, aware that the matter may need to be litigated and deciding to proceed anyways.

Though it's an oversimplification of the law, I think what most people need to remember is "If you can't say anything nice, or at least provably true, don't say anything at all."  When you get into a situation where you have a reason to say something negative about someone else, it's prudent to get legal advice on the point.  Far too many defamation actions arise from foolish casual tongue-wagging.

Proving defamation is usually simple.  Defamatory torts essentially require only proof that a defamatory statement was made by the defendant about the plaintiff.  In some types of slander, you need to be able to prove damages before the cause of action arises.  And there are a lot of technical requirements, like a notice requirement for libel in a newspaper or a broadcast.  (In essence, if you don't complain about it within six weeks, with certain specific technical requirements to the complaint, your action is barred.)

However, there are a number of substantive defences to defamatory torts, which can be very complicated and technical, and for which the onus is on the defendant.  Think about it this way:  As the plaintiff, all I have to establish is that it is more likely than not that you said something defamatory about me.  Then the ball is in your court, and you can lead a number of defences to it, which you have to prove on a balance of probabilities.

Defences to Defamation Torts

The simplest defence, in theory, is the defence of Truth, or justification.  If you can prove that what you said about me is true, then no matter how nasty or malicious it may be to spread it about, I can't sue you for defamation.  (Of course, if the information you're spreading is of a private or confidential nature, there may be other actions available.)

This is commonly misunderstood aspect of Canadian defamation law (I think because the U.S. law is not the same):  It is on the defendant to prove that the statement is true, NOT on the plaintiff to prove the statement false.  In other words, in the absence of proof one way or another, the defamatory statement is treated as false.

There are a number of other technical defences, such as "qualified privilege" and "fair comment".

Qualified privilege applies where the defendant made the statement in good faith, without malice, because of some moral or legal obligation to do so, where the person receiving it has a reciprocal legal or moral duty to receive it.  This protects, for example, a lawyer making submissions in court.

Fair comment protects a comment on a matter of public interest, based on fact, which could be expressed by a reasonable person on the basis of proven facts, and (while perhaps including inferences of fact) are recognizable as comment.  Once again, this defence is not available where the statement was made with malice.

This is a recent case out of the Ontario Superior Court dealing with a defamation claim following a consumer dispute.  The defendant's parents had ordered a furniture set from the plaintiff, at the cost of $8200.  Prestige forwarded the order to its supplier in Montreal.  Neither party realized that the the set was being manufactured in China.  It took seven months for the set to come in, and the table was in very poor condition.  Prestige had repairers examine and attempt to repair the table, but concluded that the damage was far too severe.  So Prestige went back to the supplier to try to get a replacement table, but the set was no longer available because the importer was no longer in business.  Finally, Prestige offered to pick up the table and send it back to Montreal to either be brought up to appropriate Canadian standards or to have a new comparable table rebuilt.  The purchasers, at this point, wanted nothing less than a full refund, which Prestige was not prepared to provide.

Given the impasse, the purchasers made a BBB complaint, which was resolved with the conclusion that Prestige had acted in good faith.  So the purchasers sued in Small Claims Court, where the Court concluded that Prestige had "endeavoured to find a solution", but the purchasers were still wronged, and so partial compensation was ordered - $750, plus $175 for Court filing fees.  Prestige paid the judgment.

The next chapter, which prompted this subsequent litigation, begins with Ms. Bisaillon (the purchasers' daughter) disseminating a "Buyers Beware" email, calling Prestige "untrustworthy", and making accusations which, in the words of the trial judge, "are not substantially true".  She sent the email to 38 people, asking them to forward it to others.  She sent it from her work email account with the Museum of Civilization.  (Note to employees:  This is a bad idea.  Sending personal emails from your work account is often a breach of policy in the first place, but sending actionable personal emails from your work account is a very serious matter.  Getting yourself sued is one thing, but bringing your employer's name - or domain, as the case may be - into it is another thing entirely.)  When the defendant received a copy of the email, they contacted her employer about it, and she was disciplined and instructed to apologize.  She refused to apologize, and Prestige sued her.  Prestige brought a motion for summary judgment, which resulted in the above-linked decision.

She attempted to defend on the basis of 'fair comment', but this was entirely unsuccessful.  It didn't really help that she admitted to being motivated by revenge, and malice defeats the fair comment defence.  Prestige won a judgment of $15,000.

Incidentally, both sides are probably in deeper than $15,000 in legal fees in the first place, without even counting the Small Claims Court action, and assuming that no further litigation will be necessary to collect.  Prestige will likely get a costs award as well, but given the overall modest damage award, costs will likely be constrained.

Still, while Prestige will probably end up in a net-negative position for having litigated these issues, there's often a point to be made for businesses.  A business' reputation is important, and when somebody tarnishes it, it is not uncommon to litigate as a way of remedying the situation.  So Prestige probably isn't particularly unhappy about this result.  The defendant, on the other hand, has to pay her own lawyers, has to pay the judgment, and will probably have to pay a costs award.  A pretty significant cost for some ill-thought-out online venting.  Not to mention the discipline at work.

More food for thought:  We're now well over 4 years past the original delivery of the furniture.  Prestige has responded to a BBB complaint and a Small Claims Court action (albeit largely successfully), and has now had to litigate a defamation claim.  After that much time, that many headaches, and significant legal fees, do you suppose that they wish they had just given the refund when asked?


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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