Recently, Donald Trump has made comments to his supporters that Hillary Clinton and Barack Obama are the founders of ISIS. Clearly these comments are inflammatory and meant to draw a response from the media, his supporters, the general public, and, most importantly, the people against whom they are levelled.
A friend of mine recently asked: "At what point can or will people start suing him?" This is a good question. The real answer is: "Likely when it makes strategic sense to do so."
The first question anyone should ask themselves when they are contemplating litigation is: "What do I hope to accomplish with a lawsuit?" Then, best-case scenario: "Will this lawsuit accomplish those goals? What is the cost—in every sense of the word—to me to bring this lawsuit? Is a potential positive outcome worth that cost and the risk of the lawsuit backfiring?"
Generally, if you are successful in a lawsuit, you will be awarded monetary damages. Other beneficial effects of a lawsuit are to air your side of the case and getting the chance to have a judge tell you you’re right. On that last point, however, lawsuits rarely go to trial where one side is clearly right and the other side is clearly wrong. It takes a lot of effort, time, emotional distress, and money to get to a trial. If you’re clearly right and the other side is clearly wrong, there will likely be a settlement. Even where you’re not clearly right and the other side is clearly wrong, there is a strong likelihood of settlement before you get to trial.
If Trump were to be sued for his comments about Clinton and Obama, he would be sued for libel and/or defamation. In Canada, defamation is a limit on our Section 2(b) charter right of freedom of expression. In our democratic society, you cannot go around disparaging and maligning the reputation of another person without repercussion.
The Supreme Court of Canada has said this about the matter: “Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual’s sense of worth and a reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.” (Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC),  2 S.C.R. 1130 at para. 108)
So with that in mind, to prove your case of defamation you need to prove these three elements:
- The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.
- The words, in fact, referred to the plaintiff.
- The words were published, meaning that they were communicated to at least one person other than the plaintiff.
Once you’ve proven those three things, then the defendant has the opportunity to raise a number of defences. Defences to defamation include absolute privilege, qualified privilege (which includes a category called response to attack), truth, fair comment, and reportage.
"Absolute privilege" is restricted to parliamentary proceedings and legal proceedings. When Jian Ghomeshi was fired from the CBC, he sued them, even though it was clear he couldn’t succeed because as a unionized employee he was required to go through arbitration. What Jian Ghomeshi did get through starting a lawsuit was an opportunity to state his version of events in a defamation risk-free arena. Ultimately, he paid $18,000 in costs when he withdrew his case. Was that a worthwhile and clever PR move or legitimate mistake about his legal rights to sue in court over being fired?
"Truth" is always a defence to defamation. Unfortunately, the truth is often elusive and difficult to prove. You may “know” something is true, but can you dig up the evidence to prove it?
"Fair comment" is a defence where the defamatory statement is an opinion, deduction, inference, conclusion, criticism, judgment, remark, or observation which is generally incapable of proof.
To prove the defence of fair comment, you have to meet a five-part test. First, the comment must be on a matter of public interest. Second, the comment must be based on fact. Third, the comment must be recognizable as comment. Fourth, the comments must objectively be an opinion any person could honestly express on the proved facts. Lastly, even if you meet the first four criteria, you must demonstrate that the comment was not made by express malice. Express malice will be found where the main purpose of making the statement was to injure the person against whom the statement was directed.
"Reportage" is a category that was recently created, in 2009, in a case called Grant v. Torstar Corp. (2009 SCC 61). The Supreme Court of Canada synthesizes the test for the defence of reportage at paragraph 120 of its decision:
“If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability (2) the report indicates, expressly or implicitly, that its truth has not been verified (3) the report sets out both sides of the dispute fairly and (4) the report provides the context in which the statements were made.”
This leaves us with the defence of "qualified privilege". In the years leading up to the Torstar case, the courts were getting creative with the defence of qualified privilege. Generally, qualified privilege is reserved for things like reference letters and credit checks. If a statement is made with express malice, however, then this shield is useless.
In Torstar, the SCC recognized that the defences of privilege exist because “false and defamatory expression may sometimes contribute to desirable social ends” (Torstar, para 30).
Qualified privilege has in the past been recognized by the court to protect politicians against defamation where they express concerns to the public about the conduct of other public figures. In some cases, a politician will be seen to have a “ 'duty to ventilate' matters of the concern to the public” (Torstar, para 35).
If Trump was in Canada and facing a lawsuit, he would almost certainly attempt to rely on this category of defence.
A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.