Roger D. McConchie
Partner - McConchie Law Corporation
Defamation, Privacy and Data Protection
Contributor: Roger D. McConchie (Partner, McConchie Law Corporation)
Privacy receives little judicial attention except in criminal cases although it is lauded as deserving of quasi-constitutional protection. Civil damages verdicts for unjustifiable invasions of privacy are rare, modest and attract little public attention.
Federal and provincial legislation regulates the collection, use and disclosure of personal information by government and the private sector. These statutes (which equate to UK and EU data protection laws) are administered by specialist tribunals whose decisions are rarely subjected to judicial review or media publicity. Damage awards to aggrieved individuals are virtually non-existent.
In all Canadian provinces except Québec, civil liability for defamation is largely defined by the common law which has historical roots in English jurisprudence. Liability in Québec is determined by civil law principles expressed in the Civil Code of Québec. Although common law case precedents are not directly applicable to Québec law, “there is striking similarity between the civil law and the common law approaches.”
Since the Canadian Charter of Rights and Freedoms came into force following patriation of the Canadian constitution from the United Kingdom in 1982, the Supreme Court of Canada has rendered a series of decisions concerning liability and remedies for defamation. These decisions are binding on the courts of appeal and trial courts of each province and territory.
At common law, a libel plaintiff has the onus of proving on a balance of probabilities: (1) the impugned expression would tend to lower his or her reputation in the eyes of a reasonable person; (2) the expression referred to the plaintiff; and (3) the expression was communicated to at least one person other than the plaintiff. Falsity and damage are then presumed. Slander, however, requires proof of damages unless it constitutes slander per se.
A defamation plaintiff may be awarded compensatory general, aggravated and special damages, punitive damages and a permanent injunction.  Pre-trial injunctive relief is rarely granted.
The primary defences include justification (truth), fair comment, responsible communication, qualified privilege and absolute privilege.
The defendant has the onus of proving the substantial truth of libellous stings. Express malice does not vitiate this defence.
In 2008, the Supreme Court of Canada modified the defence of fair comment by substituting an objective test (“could anyone have honestly expressed the defamatory comment on the proven facts?”) for the previous subjective requirement that the defendant prove an honest belief in the defamatory imputation.
The other elements of the fair comment defence are as follows: (i) the comment must be on a matter of public interest; (ii) the comment must be based on fact; and (iii) the comment, though it can include inferences of fact, must be recognizable as comment. Fair comment is defeated if the plaintiff proves the defendant was subjectively actuated by express malice.
The defence of responsible communication on matters of public interest, created by the Supreme Court of Canada in 2009  applies where: A. The publication is on a matter of public interest (a mixed question of fact and law); and B. The publisher was diligent in trying to verify the allegation (a question for the jury), having regard to: (a) The seriousness of the allegation; (b) The public importance of the matter; (c) The urgency of the matter; (d) The status and reliability of the source; (e) Whether the plaintiff’s side of the story was sought and accurately reported; (f) Whether the inclusion of the defamatory statement was justifiable; (g) Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (i) Any other relevant circumstances. Actual malice vitiates this defence. An individual’s reasonable expectation of privacy must be respected in this determination.
Qualified privilege protects defamatory misstatements of fact made on an occasion where the defendant has (i) an interest or (ii) a duty – legal, social or moral – to communicate the defamatory expression and its recipients have a corresponding duty or interest to receive that communication. The defence is lost if the publication was actuated by express malice, or the limits of the duty or interest have been exceeded because the manner and extent of communication is excessive or the limits of the duty or interest have been exceeded.
Absolute privilege applies to expression communicated in the course of a judicial or quasi-judicial proceeding, in communications between officers of state about affairs of state, or in the course of parliamentary proceedings.
In 2011, the Supreme Court of Canada held that a website operator should not be liable merely for including hyperlinks to defamatory material on other websites not under their control unless the hyperlink in and of itself conveyed a defamatory meaning. Where the hyperlinks only referred to the other websites without repeating their defamatory content, the “repetition rule” did not apply to impose liability.
In 2012, the Supreme Court of Canada held that publication to a third party – an essential element of the tort of defamation – occurs when the material on the Internet is read or downloaded by someone other than the publisher. A single instance of publication is sufficient for the tort to crystallize. Proof that one person in Canada downloaded defamatory expression from the Internet is sufficient to give the Canadian court jurisdiction over an author who is not physically present in the territorial jurisdiction of the Court.
In 2018, the Supreme Court of Canada confirmed defamation is committed in a jurisdiction where expression has been communicated to at least one person other than the plaintiff.
In Québec, actions for defamation come under the general system of civil liability established in art. 1457 of the Civil Code of Québec. The plaintiff is entitled to compensation if fault, injury and a causal connection are all present. Fault is determined by looking at the defendant’s conduct, while injury is assessed by looking at the impact of that conduct on the victim, and a causal link is established where the decision maker finds that a connection exists between the fault and the injury.
Generally, fault is conduct that departs from the standard of conduct of a reasonable person, to be assessed objectively. Mere negligence may constitute fault. The truth of the message will be only
one of the factors used to determine whether conduct is wrongful. Even if a comment is true, it may have been made in a wrongful manner. Scandalmongering and lies are both punishable.
Anti-SLAPP legislation enacted by Ontario in 2015 and copied by British Columbia in 2019 allows a defendant to apply to a judge for an order dismissing a lawsuit arising from expression relating to a matter of public interest. The legislation places the onus on the plaintiff of proving there are grounds to believe the proceeding has substantial merit, that the applicant has no valid defence, and the harm caused by the impugned expression outweighs the public interest in protecting the expression.
In determining the public interest in protecting the alleged wrongful expression, the court will consider inter alia whether the expression consisted of a personal attack against the plaintiff and whether the defendant communicated with the plaintiff to confront them or to investigate their allegations against them before publication. The court will also consider whether the plaintiff is vindictively or strategically seeking to silence the defendant or attempting to remedy harm suffered as a result of a defamatory communication.
Québec anti-SLAPP provisions are contained in articles 51-54 of the Code of Civil Procedure.
Provincial statutes in British Columbia, Manitoba, Saskatchewan and Newfoundland and Labrador create a civil cause of action for invasion of personal privacy.
British Columbia’s Privacy Act provides that it is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another. Publication of a matter is not a violation of privacy if: (a) the matter published was of public interest or was fair comment on a matter of public interest, or (b) the publication was privileged in accordance with the rules of law relating to defamation. Similar provisions appear in the privacy statutes of Newfoundland, Saskatchewan and Manitoba.
There are few decisions under these statutes and damage awards have been modest.
There is no general statutory cause of action for invasion of personal privacy in the provinces of Ontario, Alberta, Nova Scotia, New Brunswick and Prince Edward Island or in Nunavut or the Yukon or Northwest Territories.
The Ontario Court of Appeal recognized a common law tort of intrusion upon seclusion in 2012, in Jones v Tsige, distinguishing it from an invasion of privacy involving the dissemination or publication of information. The plaintiff must prove the intrusion was intentional or reckless and invaded, without lawful justification, the plaintiff’s private affairs or concerns in a highly offensive manner causing distress, humiliation or anguish. Proof of actual monetary loss is not required. The Court stated that damages will ordinarily be modest.
In December, 2020, the Ontario Superior Court of Justice recognized a common law tort of harassment involving conduct and publications whose purpose is not principally to defame, but rather to harass and molest the plaintiff and persons related to the plaintiff by repeated and serial publications of defamatory expression to cause fear, anxiety and misery.
In Nova Scotia, the Intimate Images and Cyber-protection Act creates civil remedies for “cyber-bullying” involving an electronic communication, direct or indirect, that causes or is likely to cause harm to another’s health or well-being where the person responsible for the publication maliciously intended to cause harm or was reckless with regard to the risk of harm.
The Civil Code of Québec recognizes a right of privacy and creates a cause of action for invasion of that right. Conduct that may violate that right includes entering a dwelling; intercepting private communications; surveillance, and using someone’s personal documents.
Federal and provincial legislation generally prohibits disclosure of personal information without consent that would be an unreasonable invasion of a third party’s personal privacy. In British Columbia, disputes under this statute are adjudicated by the Office of the Information and Privacy Commissioner of British Columbia. Parties to a dispute have a right to seek judicial review of the Commissioner’s decisions. Similar provisions apply in other provinces.
The federal Personal Information Protection and Electronic Documents Act,  (“PIPEDA”) governs the collection, use and disclosure of personal information that an organization collects, uses, or discloses in the course of commercial activities or that is about an employee of a federally-regulated work, undertaking or business.
PIPEDA also applies to provincially-regulated organizations in Ontario, Manitoba, Saskatchewan, Newfoundland and Labrador, Nova Scotia, New Brunswick and Prince Edward Island. British Columbia, Alberta and Québec organizations which are not federally-regulated are exempt from the federal law as they are deemed to have enacted “substantially similar” legislation, and are governed by the legislation enacted by each respective province.
PIPEDA requires that an organization collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances. Subject to certain exceptions, an organization must inform an individual and obtain his or her consent to the collection, use, or disclosure of that individual’s personal information except where inappropriate.
PIPEDA does not apply to any organization in respect of personal information that it only collects, uses or discloses for journalistic or literary purposes.
The Personal Information Protection Act of British Columbia contains restrictions similar to those in PIPEDA. The legislation does not apply to the collection, use or disclosure of personal information solely for artistic, journalistic or literary purposes. A similar exemption is contained in the Alberta statute. The Quebec statute exempts journalistic, historical or genealogical material collected, held, used or communicated for the legitimate information of the public.
Courts in the common law provinces and in Québec are beginning to adapt the law of defamation to Internet realities. The federal Parliament and provincial legislatures are considering amendments to their data protection statutes in order to enhance protection for sensitive personal information. Common law privacy torts are slowly being recognized. Change is underway.
Contributor: Roger D. McConchie
McConchie Law Corporation
Suite 290 – 889 Harbourside Drive
North Vancouver, British Columbia
Canada V7P 3S1
The material in this Guide is for general information only and does not constitute legal advice.
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