DEFAMATION AND MEDIA LAW
PAPER 2.1
Practical Tips for Representing a Defendant
These materials were prepared by Scott A. Dawson of Farris, Vaughan, Wills & Murphy LLP, Vancouver, BC, for
the Continuing Legal Education Society of British Columbia, November 2014.
© Scott A. Dawson
2.1.1
PRACTICAL TIPS FOR REPRESENTING A DEFENDANT
I.
Introduction and Practical Tips #1#4 ........................................................................................ 1
II.
Practical Tip #5: You Don’t Have to Wait for the Notice of Civil Claim ............................ 2
III.
Practical Tip #6: If Your Client is Likely to Apologize, Carefully Consider When
To Do It ........................................................................................................................................... 2
IV.
Practical Tip #7: Look Early for Insurance Coverage ............................................................. 3
V.
Practical Tip #8: Get a Handle on the Extent of Publication .................................................. 4
VI.
Practical Tip #9: Pleading a Defamation Case is Not Really that Different After All ........ 4
VII.
Practical Tip #10: A Plea of Malice May Not be All Bad .......................................................... 6
VIII. Practical Tip #11: Some Plaintiffs Want More than Just Vindication ................................... 6
IX.
Practical Tip #12: Consider Whether and When to Make a “Formal Offer” ....................... 6
X.
James v. Black Press: Application of Practical Tips for Defendants ...................................... 6
I.
Introduction and Practical Tips #1#4
This paper is focussed on practical tips, not black letter defamation law. Others will address black
letter topics.
The first practical tip for representing a defendant, however, is this: in a pinch, you can find much
of what you need in Gatley on Libel and Slander; Brown on Defamation; McConchie & Potts,
Canadian Libel and Slander Actions; and Porter & Potts, Canadian Libel Practice.
A review of those sources will bring you to the second practical tip: defamation law concerns
reputation, not feelings.
The balance of this paper deals with various aspects of two parallel themes in defamation cases.
These themes are practical tips 3 and 4:
#3
Investigate early, investigate often;
Defendants in defamation actions generally have to make a determination fairly quickly about
the merits of the defences available and about the strategy to be employed to meet the claim.
In most instances, that requires the immediate mobilization of resources to investigate the
facts and measure them against the law. But keep in mind that “facts” can and do change.
Glib answers given early in the brief sometimes wilt when the client is in your office three
months later being thoroughly questioned in light of the other available evidence. Where
possible, avoid developing a theory of the case that relies on Mr. Doe to repeat on the stand
precisely what he told you in your first meeting together.
Frequently test your theory of the case against the evidence as it develops.
2.1.2
#4
Damages are as important as liability issues;
Defamation cases can present counsel with a very, very small window of opportunity—
sometimes only a few minutes very early in the brief—in which to make decisions that can
have a significant impact at the trial several years later.
Do not leave the case on damages until the eve of trial. Prepare your case on damages at every
step throughout the brief, including during that initial window of opportunity.
II.
Practical Tip #5: You Don’t Have to Wait for the Notice of Civil Claim
Irate calls and demand letters present an early opportunity to assist your client. Take full advantage
of that opportunity. That may involve merely listening to the complaint. Some people just want to
be heard.
Others may want an opportunity to tell their side, or to correct what they say is a factual error. In a
newspaper setting, that may take the form of a follow-up story or a clarification.
Remember, the best work you can do for a putative defendant is to keep them out of a lawsuit
altogether.
Remember also that for all of its pitfalls, the Internet can be a litigation avoidance tool. Unlike a
television broadcast or a printed newspaper, a troubling post on the internet can sometimes be
corrected within minutes. You might also unearth statements similar to those complained but
published years earlier without complaint. Or you may find a judgment convicting the allegedly
defamed party of offences placing his/her reputation at the low end of the “Mother Teresa” scale.
III. Practical Tip #6: If Your Client is Likely to Apologize, Carefully
Consider When To Do It
Apologies are tricky. There may be intense pressure to issue one right away. On balance, however,
it is usually better to take an extra day or two and get the apology right than it is to issue an apology
that is open to criticism by the plaintiff.
Before your client issues an apology, you might review again:
●
Libel and Slander Act, R.S.B.C. 1996, c. 263;
●
instructive apology cases like Bennett v. Stupich (1981), 125 D.L.R. (3rd) 743
(B.C.S.C.), Vogel v. Canadian Broadcasting Corporation (1982), 35 B.C.L.R. 7
(S.C.), and Begbie C.J.B.C. in Hoste v. Victoria Times Publishing Co. (1889), 1
B.C.R. 365 (S.C.); and
●
Apology Act, S.B.C. 2006, c. 19.
If an apology is in the cards, making it early may provide the best return on investment. A putative
plaintiff may truly only want vindication and an early apology may keep your client from being sued.
That is not to suggest that if your client refuses to immediately apologize, he/she/it has lost the
opportunity to do so. A defendant can issue an apology at any time, without any demand for one
by the plaintiff.
Even a late apology may be relevant to the question of damages. There are cases in which judges are
critical of a defendant for failing to apologize during the trial once it is clear that he/she/it is in the
2.1.3
wrong. For every time a judge refers to the failure of the defendant to apologize during trial once it
becomes clear an apology was warranted, a plaintiff’s lawyer does it 10 times.
IV. Practical Tip #7: Look Early for Insurance Coverage
If you cannot keep your client from being sued, the next best thing you can do for him/her/it is to
find an insurer that owes a defence.
Sometimes, despite being out of the gates quickly and despite having implemented your brilliant—
let’s not be modest—strategy, you will still find that the plaintiff wants to litigate. If you have
created a strong foundation for your damages defence platform, you may soon find that much of
the pain your client feels is in the defence costs.
Do not wait for the Notice of Civil Claim to consider whether there may be coverage. In fact, if
you delay assessing the prospect for insurance coverage, you may find that coverage was available
but the steps you have taken early in the proceeding have given the underwriter coverage defences.
Keep in mind that an insured can make an apology without affecting the cover otherwise available.
Reference the Apology Act, which provides:
An apology made by or on behalf of a person in connection with any matter … does
not, despite any wording to the contrary in any contract of insurance and despite
any other enactment, void, impair or otherwise affect any insurance coverage that is
available, or that would, but for the apology, be available, to the person in
connection with that matter.
Identify possible sources of insurance at the earliest opportunity and consider (at least) calling on
every underwriter that possibly might provide coverage. Do not be satisfied with your client saying
“I have no coverage.” Insist that he/she/it review with you all policies in force at the time. Have
our client provide you with a copy of each policy.
Insurance brokers can be very good sources of information about available coverage and effective
advocates for coverage with the underwriters.
Professional media outlets will generally have sophisticated policies in place to provide
comprehensive coverage for defamation claims. The average defendant will not. The average
defendant will, however, have a commercial general liability policy or a home insurance policy.
Do not overlook the coverage that may be available there.
The nuances of coverage issues are beyond the scope of this paper but help is available. There are
terrific coverage lawyers practicing throughout BC. Your client may be well served to consult with
one. There is also a good section on the issue in McConchie & Potts, Canadian Libel and Slander
Actions.
One issue likely to come up when seeking coverage is that many (most?) insurance policies contain
exclusions for deliberate actions. Defamation generally involves an element of deliberate action, in
that defamatory words are not generally typed into a computer at gun point. Some insurers are
understandably reluctant to accept a claim based on defamation because of a perceived lack of
fortuity. Note, however, the distinction that may be made between the intention to publish the
words in question on the one hand, and the intention to cause legal liability on the other. Much will
depend on the way the claim is pleaded and the wording of the policy. The important point to keep
in mind is that merely publishing the words alleged to be defamatory may not be enough for an
insurance company to find safe harbour in an exclusion for deliberate acts.
2.1.4
In AVIVA Insurance Company v. BCMA, 2011 BCSC 1399, there were exclusions in a CGL policy
for the “knowing violation of the rights of another,” and for “material published with knowledge of
falsity.” Madam Justice Ross ordered AVIVA to defend the related defamation action, noting at
para. 68:
A plaintiff alleging defamation does not have to establish that the defendant had
any level of knowledge or blameworthy mental state. Here, the policy exclusions
address such blameworthy mental states but do not exclude publications that were
made intentionally, in the sense that the defendant meant to state the words used
and did not publish by accident.
For instructive home insurance policy cases, see Blanchard v. Halifax Insurance Co. (1996), 40
C.C.L.I. (2d) 258 from the New Brunswick Queens Bench Trial Division, Wilkinson v. Security
National Insurance Co. (1999), 15 C.C.L.I. (3d) 80 from the Alberta Queens Bench, and the Ontario
Court of Appeal in Hodgkinson v. Economical Mutual Insurance Co. (2003), 235 D.L.R. (4th) 1.
V.
Practical Tip #8: Get a Handle on the Extent of Publication
Nearly everything seems to make its way to the internet. All it takes is a for an offending video,
comment or article to be posted on a website for search engines trawling the internet to cache the
offending piece, making removal about as easy as removing bamboo from a garden.
If you move quickly and investigate early, you may be able to take a problematic story down
from the website before the ubiquitous search engine programs get to it. Diligent efforts in the
first month or so after publication can also eradicate cached versions if the search engines beat you
to the punch.
A common refrain from a plaintiff is that publication on the world wide web is effectively
publication to the world at large, calling for a significant award of damage. In fact, the converse
may well be true. Interest in a particular story on the internet can be fleeting. Sophisticated website
tracking tools can allow a defendant to demonstrate, for example, that the offending page on his
website was only viewed five times: four in the first 24 hours, and the last one on the eve of trial by
the plaintiff himself. If that sort of evidence is available, it may be so only temporarily, so be alert
and capture it.
VI. Practical Tip #9: Pleading a Defamation Case is Not Really that
Different After All
Many plaintiffs’ lawyers argue that there are special pleading rules in defamation actions that the
court must strictly enforce. Certainly there are many seemingly peculiar rules that have developed
in defamation cases over the last 200 years that a plaintiff may point to on that score. For example,
the court historically allowed the plaintiff to fix the battle ground by pleading the meaning he/she/it
sought to place on the publication. The defendant was essentially put to the election of whether to
justify the meaning alleged by the plaintiff. The defendant was unable to reframe the dispute to
focus on what the defendant alleged was the true meaning of the publication.
The law has been more generous to defendants of late. No doubt the Charter has had something to
do with that. While defendants’ counsel should still be alive to the nuances of the historic pleading
rules (and, importantly, why those rules developed) the trend now is perhaps less about specialized
rules for defamation actions and more about a practical application of the general pleading rules.
2.1.5
A defendant may now plead and justify a different defamatory meaning than that alleged by the
plaintiff. The defendant’s meaning may be “different” from the plaintiff’s, but cannot be “separate
and distinct” from the plaintiff’s. However, a defamation plaintiff seeking to strike the defendant’s
pleadings will face the stringent “bound to fail” test. As our Court of Appeal recently determined
in Casses v. Canadian Broadcasting Corporation, 2013 BCCA 200: “whether a meaning is separate
and distinct, or merely different, from that alleged by the plaintiff is a question of fact and degree,”
which is to be determined by impression as “an exercise in generosity not in parsimony.”
Does any of that really depart from the general rules of pleading in BC? An irrelevant pleading is
always susceptible to being struck, but the test to do so is onerous. Particulars are still required for
certain classes of allegations, including those where “particulars may be necessary,” such as cases
where deliberate misconduct is alleged.
The pleadings will, of course, govern the breadth of the discovery rights. The boundaries in
defamation actions are illustrated by these two cases, each of which apply principles one would
expect applied in virtually any form of civil action.
In 1888, Esher M.R. in Hennessy v. Wright (No. 2), [1888] 24 Q.B.D. 445 wrote this in disposing of
an appeal in a libel case of an interlocutory motion to compel answers to interrogatories:
The objection taken by the defendant is, that the answer to the interrogatories in
question cannot disclose anything which can be fairly said to be material to enable
the plaintiff either to maintain his own case or to destroy the case of his adversary.
It must be admitted that, if the answers could be material for either of those
purposes, the interrogatories ought to be answered, but I think it must equally be
admitted that, if the answers could not be material for either of these purposes, we
ought not to order the defendant to answer.
…
In other words, the plaintiff wishes to maintain his questions, and to insist upon
answers to them, in order that he may find out something of which he knows
nothing now, which might enable him to make a case of which he has no
knowledge at present. If that is the effect of the interrogatories, it seems to me that
they come within the description of “fishing” interrogatories, and on that ground
cannot be allowed.
The moment it appears that questions are asked and answers insisted upon in order
to enable the party to see if he can find a case, either of complaint or defence, of
which at present he knows nothing, and which will be a different case from that
which he now makes, the rule against “fishing” interrogatories applies.
And, 117 years later, reference Justice Hall in International Brotherhood of Electrical Workers,
Local 213 v. Pacific Newspaper Group Inc. (The Vancouver Sun), 2005 BCCA 44:
[25] While these cases of defamation fall into a special category relative to
discovery, some balancing exercise has to be undertaken by a court to protect the
respective rights of plaintiffs and defendants. If sufficient particulars are furnished
by a defendant to clearly identify, in appropriate detail, details concerning the
allegations, then it seems appropriate to order discovery of relevant documents.
Common sense and fairness have to be the touchstones in deciding what ought and
what ought not to be ordered produced.
2.1.6
VII. Practical Tip #10: A Plea of Malice May Not be All Bad
Plaintiffs now seem to habitually plead that the defendant was motivated by malice.
A malice pleading is similar to a plea of just cause in a wrongful dismissal case in this sense: it has a
predictable tendency to entrench the parties and increase the length of trial.
Where malice is alleged, a plaintiff may seek to cross-examine on facts helpful to the plaintiff and
known to the defendant but not included in the offending publication. The plaintiff may argue that
the failure to include this fact or that is evidence of malice. Keep in mind, however, that the
defendant may have known a great many facts about the plaintiff that are unflattering, but may have
decided not to publish those facts. It may be possible to lead that sort of evidence to rebut
allegations of malice.
VIII. Practical Tip #11: Some Plaintiffs Want More than Just Vindication
This tip could equally be called “what you do in the first 3 days may be as important as what you
do at trial.”
Despite your best efforts, some plaintiffs insist on a trial. Given the cost of litigation, it is surprising
how many plaintiffs do, even after an apology, but that is not a topic for this segment of the course.
Where they do want a trial, a plaintiff will often plead that he/she/it will rely on the conduct of the
defendant “up to and including at trial.” That does not mean the defendant must run a vanilla case.
Few judges would penalize a defendant for an aggressive but legitimate, though unsuccessful,
defence.
IX. Practical Tip #12: Consider Whether and When to Make a “Formal
Offer”
A formal offer may lessen the pain of the defence costs in a defamation trial.
A plaintiff insisting on a trial may value his/her “at large” damages case much more highly than you
do. That may cause the plaintiff to ignore a reasonable formal offer. Equally, a formal offer for a
purely monetary settlement in a case where the defendant has not apologized may not be of much
interest to a plaintiff.
A plaintiff may view a monetary settlement offer that is not also coupled with an apology
unfavourably. A defendant, however, may not want to include an apology in a formal settlement
offer, for example because she/he fears that doing so might invite disputes about the quality of the
apology that could overtake the objective of making the formal offer in the first place.
X. James v. Black Press: Application of Practical Tips for Defendants
In James v. Black Press Group Ltd., 2012 BCSC 1969, a Bowen Island newspaper published a
photograph of Simon James Jr. in connection with an article about Simon James Sr., who had just
been convicted of a criminal offence.
The story was released first by the paper on its website. That is where Simon James Jr. saw it at
approximately 9:00 p.m. on October 22, 2009. The print edition of the paper was scheduled to be
delivered on October 23, 2009.
2.1.7
Simon James Jr. was able to bring the error to the attention of Black Press the very night he saw it.
Black Press personnel then took the following steps:
●
removed the offending story from the paper’s website literally in the middle of the
night;
●
intercepted the delivery truck containing the original print edition before it was
distributed;
●
altered the story, removed the photograph, permitted counsel to Simon James Jr. to
vet the revised story and then incorporated some further changes to the story at the
lawyer’s request;
●
re-printed and circulated the revised edition of the paper;
●
worked diligently to remove cached versions of the web story as they appeared;
●
captured data relating to the number of website “hits” while the offending story was
accessible; and
●
made an early offer to publish an apology and ultimately did, both on the web and
in a print edition of the paper, but after the action was commenced.
The case went to trial before Justice Sewell. The trial took five days.
Justice Sewell’s Reasons for Judgment contain the following:
[31] I am satisfied that once the error was brought to the defendants’ attention,
they took all reasonable steps to have the Article removed from the Undercurrent
web site and to ensure that the print version of the Article was rewritten before it
was released.
[32] I am also satisfied that the defendants diligently pursued removal of all cached
versions of the Article on the World Wide Web.
[33] I also find that the defendants made a timely offer of an apology to the
plaintiff’s counsel who asked that one not be published until he got back to them.
For reasons that were not explained, that counsel, who was not counsel at trial, did
not get back to the defendants. As a result, no apology was published until after
this action was commenced.
…
[64] I have already addressed the very serious nature of the allegations contained
in the libel. Those circumstances are particularly serious for the plaintiff...
…
[66] There is also no question that the plaintiff has been deeply emotionally
affected by the publication of the libel …
[67] On the other hand there are also mitigating factors. The defendants moved
very quickly to remove the libel from the Undercurrent web site once it was
brought to their attention. Black Press ensured that the press run of the print
version of the Undercurrent was held back until the Article could be altered to the
satisfaction of the plaintiff’s counsel. The defendants made a timely offer to
publish a retraction and apology that was not taken up by plaintiff’s counsel.
[68] I am also satisfied that Black Press took all reasonable steps to locate and
remove cached versions of the Article from the World Wide Web. In this regard
they cooperated with the plaintiff in diligently following up on all cached versions
located and identified by his counsel.
2.1.8
[69] As a result it is clear that only a relatively small number of persons actually
saw the libel and in all probability even fewer saw it without knowing that
Mr. James’ picture had been posted in error. There was considerable evidence
presented as to how often the site was viewed. I need not refer to it in detail. I am
satisfied that less than 500 persons saw the offending material.
…
[71] I conclude that this is a case that calls for an award of significant damages,
mitigated by the above factors.
[72] I have considered the cases on mistaken identity referred to by the
defendants. In my view this is a more serious case than one of simple mistaken
identity. In this case the Article and headline were intended to refer to Mr. James.
They described him in some detail. The statements were made about him. In the
cases referred to by the defendants, the error would have been obvious to anyone
who knew the plaintiff. That would not be the case here because the captioned
words do identify Mr. James.
[73] Taking all of the circumstances into account, I assess general damages in the
amount of $35,000.
[74] I also award the plaintiff special damages of $100, being the cost of removing
the Raven Tales decals from his car.
[75] The plaintiff is entitled to his costs of the action on scale B, but subject to the
parties having liberty to apply with respect to costs.
It is debatable, in all the circumstances, whether this is a “win” for the plaintiff or the defendants.