The right way to handle a defamation claim?

CAN one maintain a claim in defamation without having to address the issue of whether the offending words are true? The answer is no, but the extent to which it need be addressed depends on certain nuances applicable to defamation cases.

It is quite common for public figures who are the subject of controversial allegations to threaten defamation suits in the hopes of silencing the ensuing public debate and outrage. If the controversy also raises the issue of criminal behaviour, embattled public figures have relied on non-existent or aborted police investigations as further impetus to chastise any continued public discourse as defamatory.

This could all be while choosing not to publicly admit or deny whether the allegations levelled against them are true. It therefore begs the question – is a claimant required to prove that a statement he alleges is defamatory is untrue, or is it the defendant who is required to prove that such a statement is true?

When one makes a claim for defamation, the presumption is that the statement alleged to be defamatory is untrue. Although claimants are generally required to prove what they assert, in defamation cases a claimant need not prove that the statement is untrue. It is the defendant choosing to assert that a statement is true who has the evidentiary burden of proving that truth.

However, this does not mean that a claimant can just proceed with a defamation claim without making an assertion, whether expressly or by implication, that the statement is false. Court documents initiating a claim must be accompanied by a ‘certificate of truth’ executed by the claimant which certifies that all facts set out in the claim are true. Hence, by issuing a claim that a statement is defamatory, a claimant is also implicitly certifying that the statement is false. Moreover, when the case comes on for trial, the claimant, in giving his evidence under oath in court, will be doing so under

penalty of perjury.

The question of whether a statement is true becomes a live issue in a defamation case if a defendant launches a ‘truth’ defence. The nature and extent of the required evidence to support this defence depends on the meaning of the words that are alleged to be defamatory. An imputation that a claimant committed a criminal offence is different from stating that there are grounds for further investigations or reasonable grounds to suspect certain conduct. However, even in the latter case, the defendant still has the unenviable task of proving the primary facts giving rise to that suspicion. Even for a statement of opinion, the burden of proving ‘truth’ is not eliminated. The defence that an opinion is ‘fair comment’ only applies if the relevant facts underlying the opinion are proven to be mostly true.

Whether there are any other applicable defences may depend on the nature of the publication. A newspaper article on a matter of public concern, if deemed responsible journalism, could support a defence of ‘qualified privilege’ without a need to prove ‘truth’. On the other hand, a casual social media post with a lessthan-careful choice of words may leave the author with little to no chance of successfully defending a defamation claim unless he proves ‘truth’.

The closure of a criminal investigation is not a clear indication of the likely outcome of a defamation case. The required standard proof in civil cases, such as defamation, is a ‘balance of probabilities’ (ie an event more likely occurred than not), not the more difficult standard of ‘beyond a reasonable doubt’ as obtains in criminal cases. As such, the decision to end a criminal investigation does not mean that a defendant in a defamation case will be unable to prove that a claimant, more likely than not, engaged in the alleged conduct. However, there is still some caution there, as courts have held that the more serious the allegation, the higher the degree of probability required to prove it.

A defendant ought not to take the decision to proceed with a ‘truth’ defence lightly. If he fails to prove truth then not only will he likely be found liable for defamation (if he has no other valid defence), but the court may treat it as an aggravation of the original injury – thus justifying a higher award of damages to the claimant (than had the defendant not pursued the truth defence). On the other hand, if the truth defence succeeds it will remove all doubt in the public domain as to the truth of the allegations, thus exposing the claimant to more reputational harm – the very thing that the claimant sought to remedy in the first place – not to mention an order to pay the defendant’s legal costs and a possible conviction for perjury.

The moral of the story is that claimants and defendants alike should carefully consider all possibilities before embarking on a defamation claim or defence, as the case may be. There is no one right approach in all circumstances. The peculiar legal and strategic considerations are of utmost importance.

Stephanie Ewbank is a partner at Myers, Fletcher and Gordon, and is a member of the firm’s Litigation Department. She may be contacted at stephanie.ewbank@ mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.