A note to my critics

When I publish criticisms of people, as sometimes I do, I take my responsibility to act lawfully very seriously. I have a number of deeply unpleasant, malicious and rather noisy critics. I also have my fans.

So just to make it clear: if I attack someone who has publicly attacked me, I do so in self-defence. The law permits this.

There is a helpful statement of the law of qualified privilege in the case of Robinson v Furlong [2015] BCSC 1690. This makes clear that a person acting in self-defence in response to unjustfied public attack:

is not obliged to keep one hand behind his or her back and retaliate with respect to only some of the blows. Nor is he or she obliged to follow the rules of Queensberry. A person…is entitled to respond by way of vindication. … He or she may deny or explain the defamatory matter, correct any misstatements, reflect adversely on the assailant, label a personal attack as a “lie” and the attacker as a “liar”, “attack in proper language the accuracy of the conclusions”, “impugn the truth of the charges”, question the purity of the accuser’s motives, and, in an appropriate case, even defame the assailant in the process.

[…]

a person making a communication on a privileged occasion is not restricted to the use of such language merely as is necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

For those who are interested, here is the full extract:

“B.            Qualified Privilege

1.             The law of response to attack

[23]        The law recognizes that a response to an attack on a person’s character or conduct constitutes an occasion of qualified privilege and, absent malice, defamatory statements made in the course of responding to an attack are privileged. In Richardson v. Vancouver (City), 2006 BCCA 36, our Court of Appeal said the following at para. 38 with respect to this aspect of privilege:

…[A] person whose character or conduct has been attacked is entitled to answer the attack, and any defamatory statements he makes about the person who attacked him will be privileged provided they are bona fides and are fairly relevant to the accusations made. [Emphasis added.]

[24]        Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Carswell, 1999) (loose-leaf updated 2014, release 3) vol. 4 at 13-236.56-13.236.61, observed that the qualified privilege is much like the right of self-defence in criminal law. The person being attacked is entitled to respond by way of vindication, and need not follow the rules of Queensbury when doing so. The learned author has usefully summarized the principle as follows:

… There is a “privilege to hit back when one’s reputation is attacked”. A person has a right, within limits, to defend himself or herself against false accusations. This privilege has been likened to a man’s right of self-defence in criminal law. Where a defendant is attacked by another, he or she is privileged to meet the attack with an appropriate rejoinder, and where the attack is a public one, the public has a corresponding interest in the reply. There is available to him or her the common law privilege of self-defense. A defendant is not obliged to keep one hand behind his or her back and retaliate with respect to only some of the blows. Nor is he or she obliged to follow the rules of Queensberry. A person…is entitled to respond by way of vindication. … He or she may deny or explain the defamatory matter, correct any misstatements, reflect adversely on the assailant, label a personal attack as a “lie” and the attacker as a “liar”, “attack in proper language the accuracy of the conclusions”, “impugn the truth of the charges”, question the purity of the accuser’s motives, and, in an appropriate case, even defame the assailant in the process.

[25]        To attract the privilege, the response must be “germane and reasonably appropriate to the occasion”: Botiuk v. Toronto Free Press Publications Ltd, [1995] 3 S.C.R. 3 at para. 86 [Botiuk].

[26]        In the case of Ward v. Clark, 2001 BCCA 724 [Ward], the Court stated at para. 56 that in the event the response is “directed at countering the criticisms made”, that will satisfy the requirement that it be germane and reasonably appropriate to the occasion. The Court went on to say that the law “does not require either blandness or accuracy as a condition of successfully invoking qualified privilege”, citing the well-established principle from Adam v. Ward, [1917] A.C. 309 at 339 [Adam]:

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

[27]        Another leading authority on the issue is Horrocks v. Lowe, [1975] A.C. 135 (HL) [Horrocks], which has been cited with approval in our courts on numerous occasions. The generous approach to be taken in assessing a defendant’s “response to attack” was described by Lord Diplock at 151 as follows:

The exception [to the protection of qualified privilege] is where what is published incorporates defamatory matter that is not really necessary to fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it may be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them so to do. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded.

[28]        In other words, a defamatory statement made in response to an attack on one’s character or conduct must be clearly and obviously irrelevant to the substance of the attack before the qualified privilege is lost.

2.             Presumption against Malice

[29]        On an occasion of qualified privilege, such as defence to an attack, the law presumes that defamatory statements were made honestly and in good faith unless the plaintiff can prove that the statements were actuated by express or actual malice:  Martin v. Lavigne, 2011 BCCA 104 at paras. 33-35 [Martin]. The burden of proving malice is not easily discharged: Martin at para. 44.

[30]        Express malice will only be found where the defendant’s desire to protect his or her interest plays no significant part in the motive for publishing what he or she believes to be true: Cimolai v. Hall et al., 2007 BCCA 225 at para. 41.

[31]        Malice is not established where the defendant was merely aware that the publication would injure the plaintiff. Injuring the plaintiff must be the dominant motive of the defendant before malice will be found: Horrocks, at 149-50.

[32]        Further, dislike is not malice. The fact that the defendant “disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it” is not sufficient to establish malice: Horrocks, at 151.

[33]        Unless the words published are wholly unconnected or irrelevant to the occasion of qualified privilege, they are presumed to be published in good faith, unless the plaintiff can prove with evidence either extrinsic or intrinsic that they were published maliciously:  Netupsky v. Craig, [1973] S.C.R. 55 at 60-61.”