What They Wish They Knew Before Publishing

Never underestimate the risks

I have defended various kinds of professionals who have found themselves on the wrong side of a defamation action. So often, my clients had a genuine need to voice criticisms of a person or company. Other times, it was just too darn easy for them to publish their own piece on social media, or to endorse and hyperlink to the defamatory words of others.

My clients often express to me that they wish they had known at the time of the publishing what would be involved in proving fair comment or truth, and the technicalities of these defences. Others wished that they had limited the scope of their publication so that they could better rely on the defence of qualified privilege, or even absolute privilege.

Often, my clients express to me that they wish they appreciated at the time of publishing how relentless the potential plaintiff would be in pursuing his or her claim. A tenacious plaintiff often believes that the publisher acted maliciously and ruined his or her life or business and believes, even where the objective facts suggest otherwise, that there is no truth to what has been said. This mindset can hamper resolution attempts and increase the likelihood of the matter going to trial.

Fortunately, this technical area of the law has an ever expanding set of cards to play to successfully defend or dismiss a defamation claim. For instance, in recent years the jurisprudence has opened the door to certain kinds of defamation claims being dismissed by way of summary trial. There are also strict pleadings rules which can greatly assist a defendant in striking part or all of a defamation claim.

However, why not stop for a moment and talk about how such claims can be avoided in the first place. Although I enjoy developing a relationship with my clients, advocating for their free speech, and defending them through the fight, I appreciate that all in all they would be happier if they had never required my litigation services.

This discussion demonstrates that much can be gained by obtaining risk management legal advice, prior to publishing, regarding the words and appropriate forum to use. Such advice can save you from the time, expense and energy required to defend a defamation claim.

The meaning defended is not the meaning intended by the author

A publisher rarely appreciates that the meanings and innuendoes which will have to be defended are not the meanings and innuendoes that he or she intended to convey or believed were being conveyed. If a defamation action is commenced, counsel will fight over the meanings of the words published. Plaintiff's counsel will plead and argue throughout that the most ghastly and horrendous meanings were conveyed, whilst defence counsel will seek to minimize or deny any defamatory meaning. Advocacy can be compelling in this regard given the subjectivity in determining meanings. This subjectivity is evident by the fact that our trial court and appellate court often disagree on what the words conveyed in their context.

When considering meaning, the Court will not consider what you meant to say, but rather will look at the words conveyed, consider the context, and then arrive at a meaning which the Court believes a reasonable and ordinary reader or listener would take from the statement. Although you may testify on what you intended to convey to answer to allegations that you published with malice, the Court will not consider your own intended meaning when ruling on the meaning in fact conveyed.

The Court's determination of meaning and innuendoes will set the stage for the success or failure of the truth and fair comment defences.

The limits of truth

The defence of truth (formerly referred to as "justification") can provide a full defence to a claim in defamation. To succeed, the truth of every injurious imputation which the trier of fact finds to be conveyed by the publication must be proven on a balance of probabilities to be true. The Court will focus on the sting of the defamatory imputations, and whether the various stings are substantially true.

There are great risks in pleading truth where there is no evidence to support it. The failure to successfully prove facts pled to be true in a defamation action could...

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