 Hello, it's Wayne LeCiao and this is torts, Introduction and Intentional Torts Module 3A Part E. In this part, we'll look at the intentional torts that protect a person's or a business's reputation, defamation and injurious falsehood. What needs to be proven in terms of the requirements for the tort of defamation is that there has to be a statement made by the defendant and a reasonable person would think the statement refers to the plaintiff and it would cause a reasonable person to have a lower opinion of the plaintiff. The statement also has to be published. What published means is not necessarily published in a newspaper or in writing anywhere, it just has to be communicated in any way to a third party and that would include things like social media. The defenses available for defamation are justification, privilege, and there are two types, absolute or qualified and fair comment. We'll look at each of these defenses in more detail. The remedies available for defamation are injunction and compensatory damages and we'll also discuss that in more detail. Let's look at the specific defenses that may be available to a defendant to avoid liability for defamation. The first defense is called justification where simply the defendant proves that the statement that they made was true. So it doesn't matter how damaging the statement is on the reputation of the plaintiff. As long as the defendant can prove that it's true, the defendant won't be held liable for defamation. The important thing to keep in mind here is that the plaintiff, the person who's suing, does not have any obligation to prove that the statement was untrue. They just need to start the lawsuit and make the allegation that it's defamation. It's up to the defendant. The defendant has the burden to prove that the statement that they made was true. The second defense is called absolute privilege. So under specific situations or statements made by specific people, the courts have recognized that it's important in those situations to allow people to speak freely without fear of being sued for defamation. So one of those situations is in parliament. For example, in the federal parliament in the House of Commons, people say many things and they sort of throw insults back and forth between each other and they debate issues. Any statement that's made in parliament is exempt from defamation. It would be subject to absolute privilege. Another type of situation where there's absolute privilege is communications between high government officials. Anything that's said in a court proceeding, like by a judge, by a lawyer, by a witness, or by one of the parties that are litigating, anything that's said in a courtroom, in a trial or other court proceeding is subject to absolute privilege and those people cannot be sued for defamation. Things said between spouses are also subject to absolute privilege. Another defamation defense is qualified privilege. This is where the defendant has some kind of legal, moral, or social obligation to make the statement that they did make. And the statement is made to someone with a similar duty or interest in receiving it. The statement is made in good faith and the defendant thought that the statement was true and was not motivated by any malicious purpose. An example is when a manager or someone is giving a reference for a job and let's say the manager makes an unfair statement about the former employee. As long as that statement is made in good faith and there's no malicious intent, then the defense of qualified privilege should protect the manager from any claim of defamation. In a free and democratic society like ours where we value freedom of expression, a very important defamation defense is the defense of public interest responsible communication. This defense provides protection to journalists and anyone else who publish stories of public interest. The law for this defense is set out in the Supreme Court decision of Grant and Torstar Corp. Please note that in the textbook on page 119 it talks about a defense called public interest responsible journalism, which is the old name for this defense, but the Supreme Court has renamed it public interest responsible communication to make that defense available to people other than journalists. And also the list of relevant factors for the defense that are set out in the textbook are not entirely correct. So please do not rely on what is in the textbook on page 119. The Supreme Court said that the defense of public interest responsible communication will apply where number one, the publication is on a matter of public interest and number two, the publisher was diligent in trying to verify the allegation having regard to a number of different factors. The seriousness of the allegation, the public importance of the matter, the urgency of the matter, the status and reliability of the source, whether the plaintiff side of the story was sought and accurately reported, whether the inclusion of the defamatory statement was justifiable. So what that is referring to is whether or not the defamatory statement was necessary in conveying the matter of public interest. The next one is whether the defamatory statements public interest lay in the fact that it was made rather than its truth. So what that is referring to, let's use a real example. Donald Trump had tweeted that President Obama had wire tapped all of Donald Trump's phones in Trump Tower. So that clearly was a false statement and it was a statement that was defamatory to Barack Obama's reputation. Now, for the media to report that defamatory statement by just repeating someone else's defamatory statement is also defamation in itself, usually. But if the reason that the media is reporting is because Donald Trump said it and if the media does that, but does it in a responsible way by pointing out that what Donald Trump said was entirely false, then that's acceptable. So that's called reported. So that's not considered to be defamation. The last thing that needs to be considered is a catch all category of any other relevant circumstances in determining whether or not the publisher was diligent in trying to verify the allegation. The defamation defense of fair comment is meant to encourage people to express their opinions about matters of public interest without fear of being held liable for defamation. The Supreme Court has set out three elements that need to be fulfilled in order for the fair comment defense to be applicable. The first is called informed opinion. That means that a reasonable person would interpret the statement as an opinion based on fact rather than as a fact. The second requirement is public interest. The opinion must concern an issue of public interest. And lastly, honestly held. The opinion could be honestly held by some person, even if that person is prejudiced or opinionated. Have a look at this magazine cover from The New Yorker in 2008. This was published leading up to the presidential election that elected Barack Obama as president. Have a careful look and then ask, is this magazine cover considered to be fair comment? If someone is successful in assuming for defamation, what can they expect as remedies from the court? The most common remedy is compensatory damages. So this would compensate for any actual economic losses that the victim has suffered. So they could be loss of a job or loss of business opportunities. And also sometimes the court may award damages for personal distress that's been caused by the defamation. Less common is the awarding of punitive damages. But punitive damages will be awarded if the court considers the defamation to be outrageous conduct. It was done in just a horrible, outlandish manner enough that the court wants to send a message and punish the person who committed the defamation. The last remedy is an injunction to prevent a potential defamation. So if someone knows that a newspaper is about to print a story about them, they could try to get an injunction to prevent to stop the newspaper from printing the story. This type of remedy is generally rarely awarded by the courts because the courts don't want to impede or prevent freedom of expression or free speech. So to get an injunction, a court has to be convinced with clear evidence that if the story is published that defamation will likely result. Here is a quick quiz question. Please pause the video for a moment so that you can read the question and consider the answer that you think is correct. The answer is the defense of absolute privilege would apply. Anything that is said in court is considered to be protected by absolute privilege. The last tort we are looking at is called injurious falsehood. Injurious falsehood is very similar to defamation. Think of defamation as protecting personal reputations while injurious falsehood protects business reputations. The specific requirements for the tort of injurious falsehood are that the defendant made a false statement about the plaintiff's business or property. The second requirement is that there is publication or communication to a third party of that false statement. The defendant acted out of malice and the false statement caused an economic loss. There are different forms of injurious falsehood. There is slander of title. And that's a statement regarding the ownership of land, a false statement about the ownership of land that is put up for sale. Slander of quality. So that's a false disparaging statement about a business's products. So it's not a slander of quality if you're saying your product is better than another product or you're saying the product is bad but it turns out that that is true. That's also not a slander of quality. And also false statements about high quality of the defendant's products is also not a slander of quality. And there are other situations that could involve injurious falsehood. One example, there's a case where there was a false statement that was made that a house that was for sale was haunted. So someone wanted to prevent the sale of a house by spreading rumors that the house was haunted when it really wasn't.