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On March 1, 2012, the BC Supreme Court released its decision in Tjelta v. Wang (2012 BCSC 299) (see: Tjelta v. Wang 2012 BCSC 299), in which the plaintiff was awarded damages of $20,000 for defamatory statements made in e-mails and other communications.

This recent case is a good illustration of the importance of ensuring accurate e-mail and online communications.  The case is also a good update on the law of defamation in British Columbia.

Generally speaking, a plaintiff in a defamation action is required to prove three things: (i) that the impugned words were defamatory (i.e., that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person), (ii) that the words in fact referred to the plaintiff, and (iii) that the words were published (i.e., communicated to at least one person other than the plaintiff).

Helpful for plaintiffs is the fact that falsity and damage are presumed in defamation actions.  Also helpful to plaintiffs is that they are not required to prove that a defendant intended to do harm or was careless (i.e., defamation is a “strict liability” tort).  Where a plaintiff establishes the necessary elements, the onus or burden then shifts to the defendant to prove a valid defence to escape liability.

The Tjelta v. Wang case involved allegations of defamation in a series of emails and letters following a failed business relationship (a financing) to the plaintiff’s friends, family members, neighbours, business associates and other investors.

Statements made in this case included references to the plaintiff’s tax status with CRA (an alleged fine) and to him as a “blood-sucker”, “selfish, greedy and mean”, “dishonest”, “misleading” and “unethical”, among other things.

The defendant, Ms. Wang, asserted, among other things, that her statements were true and that she felt she had a duty to warn friends.

Mr. Justice Crawford discussed a number of interesting aspects of defamation law in British Columbia including whether hyperlinks are defamatory (referring to the recent decision in Crookes v. Wikimedia Foundation Inc., 2008 BCSC 1424, aff’d 2009 BCCA 392), available defences and authorities for the assessment of damages.

The Court found that the defendant had plainly made a number of defamatory statements about the plaintiff imputing his business ethics and practices.

In coming to this decision, Mr. Justice Crawford found that the defendant had not only linked a damaging website, but reproduced some of its content in a letter to shareholders, that there was no evidence to support the allegation that the plaintiff was broke due to a CRA fine and there was similarly no evidence for statements that the plaintiff was dishonest or a “blood-sucker” (for example, other disgruntled investors).  With respect to the latter, the Court found that such statements, had they been true, were “easily capable of being proven by disgruntled investors” yet the defendant failed to produce any evidence to substantiate those allegations.

In sum, with respect to liability, the Court concluded that it was “left with patently defamatory statements” to persons within the plaintiff’s business circle, entitling him to damages.

Interestingly, however, though the plaintiff claimed that his ability to raise financing was adversely affected by the defendant’s statements, the Court refused to make a finding on the financial effects of the defamatory statements based on the plaintiff’s failure to adduce income evidence  (highlighting the importance for plaintiffs of adducing adequate evidence to support alleged financial harm).

Also interesting was the fact that the Court found that of three witnesses that gave evidence, none of them indicated that the defendant’s statements lowered the plaintiff’s reputation in their estimation (who testified that they assumed that the allegations were not true).

With respect to damages, the Court reviewed the law of defamation, including available defences (citing the Supreme Court in Grant v. Torstar Corp., 2009 SCC 61):

“In addition to privilege, statements of opinion, a category which includes any “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” (Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56, cited in WIC Radio, at para. 26), may attract the defence of fair comment. As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a “fair-minded” person could honestly hold, to a requirement that it be one that “anyone could honestly have expressed” (paras. 49-51), which allows for robust debate. As Binnie J. put it, “[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones” (para. 4).

Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society.

To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true. This may be difficult to do. A journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless have difficulty proving this in court, perhaps years after the event. The practical result of the gap between responsible verification and the ability to prove truth in a court of law on some date far in the future, is that the defence of justification is often of little utility to journalists and those who publish their stories.

If the defence of justification fails, generally the only way a publisher can escape liability for an untrue defamatory statement of fact is by establishing that the statement was made on a privileged occasion. However, the defence of qualified privilege has seldom assisted media organizations. One reason is that qualified privilege has traditionally been grounded in special relationships characterized by a “duty” to communicate the information and a reciprocal “interest” in receiving it. The press communicates information not to identified individuals with whom it has a personal relationship, but to the public at large. Another reason is the conservative stance of early decisions, which struck a balance that preferred reputation over freedom of expression. In a series of judgments written by Cartwright J. (as he then was), this Court refused to grant the communications media any special status that might have afforded them greater access to the privilege: Douglas v. Tucker, [1952] 1 S.C.R. 275; Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203; Banks v. Globe and Mail Ltd., [1961] S.C.R. 474; Jones v. Bennett, [1969] S.C.R. 277.”

Of the available defences, the defendant in this case relied solely on justification which the court held “cannot stand in light of the facts”.  The Court further found that the defendant was “recklessly indifferent” as to whether what she was saying was true or false.

After reviewing the relevant law regarding damages in defamation actions, the Court awarded the plaintiff $20,000.

The Court also dismissed the defendant’s counterclaim and refused to award any punitive or aggravated damages.

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