InfoLAW: Defamation

Key terms we use in this InfoLAW:

• Plaintiff: the person or the organization who filed a civil lawsuit against someone else.
• Defendant: the person or the organization being sued in a civil lawsuit.

What is defamation?

The courts have defined a defamatory statement as one “…which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule”¹ Defamation is either libel or slander. In libel, the defamatory communication is made in a written, printed or otherwise visible and permanent form, such as books, articles, websites, broadcasts, emails and social media posts. In slander, it is spoken words. In some jurisdictions, the distinction between libel and slander has been eliminated by defamation statutes that define “defamation” as “libel or slander”.

The plaintiff claiming defamation must establish the following three elements:

1. Defamatory meaning of the communication itself
   The words must be defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.
2. Reference to the plaintiff
   The words in fact referred to the person or organization who claim to have been defamed (the plaintiff does not have to be named in order to be identifiable).
3. Publication of the communication
   The words were published, meaning that they were communicated to at least one person other than the person or organization who claims they have been defamed.²

Defamation, therefore, is a written or spoken communication, which unfairly tends to lower the reputation of its subject in the opinion of society. Nurses should bear this in mind when communicating with patients and about patients, colleagues, employers, as well as other individuals and organizations. The risk of a finding of liability in defamation is greatly reduced if a commentary, both verbal and written, is accurate and made only to those who are entitled to receive it.

Because the very crux of the damage is to one’s reputation, defamation statutes typically require that a legal action be commenced quickly.³

What are the defences to defamation?

Where the plaintiff proves that the defendant has published defamatory statements about the plaintiff to at least one other person, the defendant must establish a defence in order to escape liability. The primary defences available to nurses facing allegations of defamation include truth (justification), fair comment and qualified privilege.

Truth
The defence of truth protects statements of fact that are substantially true. Truth is a complete defence to defamation, meaning that it protects even defamatory statements that were published with malice (spite, ill will or ulterior motive) towards the plaintiff.

Fair Comment
The defence of fair comment protects comments of opinion, as opposed to statements of fact, on a matter of public interest, that are made with honest belief. The comments of opinion must be based on true facts. The defence of fair comment will be lost if the defendant is shown to have acted with malice towards the plaintiff.

Qualified Privilege
The defence of qualified privilege protects defamatory statements made on a privileged occasion, which is “…an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”⁴ The courts make an objective determination as to whether a common interest or duty exists in particular circumstances. In making this determination, the courts will typically consider the role or position of the person making the communication and that of the recipient, as well as the nature of the forum in which the communication was made.

Examples of occasions that courts have determined to be privileged in the health care context include, but are not limited to situations where a health care professional is making a report to appropriate authorities pursuant to a duty to report (e.g. mandatory duty to report suspected abuse under child protection legislation), is communicating with other health care providers about the patient’s health or treatment, or is communicating with security personnel about safety concerns.

The defence of qualified privilege can be lost through over-publication to those who did not have a duty or interest to receive the communication, if the defamatory words are excessive, or if the defendant is shown to have acted with malice.

Someone made a complaint to my manager about my practice. Is this defamation?

Your manager has many responsibilities which include monitoring the quality of nursing care and handling personnel problems. Reporting concerns of this nature to a manager may be considered a privileged occasion because of the nature of the management role. However, excessive behaviour has been known to weaken the defence of qualified privilege. The defense could therefore be lost if the complaint is also made to individuals who do not have the authority to address it or if the complainant makes excessive defamatory statements beyond what would be required to communicate the substance of the complaint.

Someone made a complaint to my licensing body about my practice. The investigation has concluded in my favour. Can I sue the complainant in defamation?

Professional regulatory bodies are empowered by statute to investigate and decide upon their members’ adherence to professional standards for the protection of the public. Consequently, reporting an honestly-held belief that a nurse’s practice warrants investigation to a regulatory body would be considered participation in a legitimate regulatory process and would likely be protected by the defence of qualified privilege.

A Quebec Court of Appeal concluded that a defamation suit commenced after a regulatory body concluded an investigation in the nurse’s favour would be unsuccessful, unless the nurse could provide evidence that the person making the report knew the allegations were false. In that case, a registered nurse sued a dissatisfied patient’s husband in defamation after he complained about her practice to the Montreal Graduate Nurse Association. The Court of Appeal decided that the patient’s husband acted in good faith, believing he had several legitimate concerns about the RN’s practice. He was not liable for defamation when he reported those concerns to the association.⁵

Risk Management

To decrease your professional and personal risks, consider adopting the following safeguards:

Before communicating concerns about an individual or entity to third parties:

• Let emotions cool
• Consider whether your proposed criticism could have a detrimental impact on the subject’s reputation
• Consider whether you have personal knowledge and supporting evidence of these facts
• Consider whether you would be breaching patient confidentiality in making your communications
• Consider whether you have a duty to report a particular situation and if so, to whom the report should be made

If you decide to communicate your concerns:

• Make a report through the proper channels (i.e. to appropriate authorities or individuals who have a duty or interest to receive your report and have the ability to address your concerns); do not communicate to a wider audience than is required
• Avoid using social media to vent or discuss work-related events or to comment on similar postings by others
• Avoid posting negative comments about your colleagues, supervisors and other health care professionals; disclosing information obtained at work could be considered unprofessional and, if erroneous, could lead to a defamation claim
• Avoid exaggerating facts
• Avoid using inflammatory or sensational language
• Clearly distinguish opinions from facts
• Back up your reasoning with published standards, guidelines, and other relevant publications

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. Botiuk v Toronto Free Press, [1995] 3 SCR 3 (SCC) at para 62.
2. Grant v Torstar Corp, 2009 SCC 61 (CanLII), [2009] 3 SCR 640 (SCC) at para 28.
3. Consider prompt consultation with a lawyer in your jurisdiction if you want to commence a defamation lawsuit. Limitation periods and notice periods for this kind of lawsuit tend to be short.
4. Hill v The Church of Scientology of Toronto, [1995] 2 SCR 1130 (SCC), 1995 CanLII 59 (SCC) at para 143.
5. Moore v Lenkorn, 1996 CanLII 6167 (QC CA), [1996] AQ No 77 (QC CA).

Revised March 2020

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.