Absolute vs Qualified Privilege: Understanding Defamation Defences in Ontario

When someone makes a false statement that damages your reputation, you may have grounds for a defamation lawsuit. But certain situations allow people to make statements without legal consequences. These protections are called “privilege,” and understanding the difference between absolute and qualified privilege is crucial for both plaintiffs and defendants in defamation cases.

Privilege is a legal defence that protects people from defamation liability even when their statements are false and harmful to someone’s reputation. The law recognizes that in certain contexts, free speech and open communication are more important than protecting individual reputations.

Absolute privilege provides complete immunity from defamation claims.

Court proceedings: Statements made during trials, hearings, or tribunal proceedings by witnesses, lawyers, judges, or parties are absolutely protected. This includes testimony, arguments, and documents filed with the court.

Parliamentary proceedings: Politicians can say anything during legislative debates, committee meetings, or parliamentary sessions without fear of defamation lawsuits.

Spousal communications: Private statements between married spouses are absolutely privileged.

The law prioritizes encouraging honest testimony in court, free debate in legislatures, and candid communication between spouses over protecting reputations. These settings have other safeguards like perjury laws and parliamentary discipline.

Privilege applies only within the protected setting. If a witness repeats their court testimony at a dinner party, absolute privilege may not apply.

Qualified privilege protects a person from defamation liability when they make a statement honestly, in circumstances where they have a duty to communicate it – such as in the course of their job – and the statement is shared only with those who need to know. However, if the statement is made for an improper purpose, such as with malice, this protection is lost.

 In essence, qualified privilege shields individuals from liability for honest mistakes made in situations where there is a public or professional duty to speak.

Employment references: Employers providing job references or performance evaluations to prospective employers.

Professional complaints: Reporting misconduct to regulatory bodies like the Law Society or medical colleges.

Police reports: Reporting suspected criminal activity to authorities.

Malice defeats qualified privilege. Malice means:

• The dominant purpose was to injure reputation rather than fulfill a legitimate purpose
• The speaker knew the statement was false
• Reckless disregard for truth
• Personal spite, revenge, or improper motives

Evidence of malice:

• Going beyond what’s necessary for the legitimate purpose
• Using unnecessarily harsh language
• Prior personal animosity
• Failure to verify information
• Inconsistent stories suggesting fabrication

Defendants: Establish which privilege applies, demonstrate good faith for qualified privilege, and challenge any malice allegations with evidence of proper motivations.

Plaintiffs: For absolute privilege, show it doesn’t actually apply to the specific statement. For qualified privilege, gather evidence proving malice – emails showing spite, proof they knew it was false, or statements exceeding legitimate purpose.

Facing defamation issues? Our civil litigation lawyers handle defamation claims and privilege defences. Contact us at 416.901.9984 or info@pintoshekib.ca.