Defamation


What is defamation?
The courts have defined a defamatory statement as “...one which has a tendency to injure the reputation of the person to whom it refers, which lowers him in the estimation of the right-thinking members of society, and which exposes the individual to the feelings of hatred, contempt, ridicule, fear, dislike or disesteem.”1 Defamation is either libel or slander. In libel, the defamatory communication is made in a visible and permanent form. In slander, it is spoken words.

Three elements must be proved for a defamation lawsuit to be successful:

  1. The meaning of the communication itself
    If the ordinary meaning of the words or images tend to tarnish their subject’s reputation, they can be deemed to be defamatory even if the defendant says there was no intention to defame.
  2. Unfairness or lack of justification of the communication
    The implications of the communication must be false or unfounded in some way. Compelling evidence of truth-telling can be a complete defence to defamation.
  3. Publication of the communication
    In the law of defamation, publication means the communication must have been conveyed to a third party (or parties), not simply to the defamed person. Beware of electronic methods of communication which make wide-spread publication very easy.2

Defamation, therefore, is a published communication, either written or spoken, which unfairly tends to lower the reputation of its subject in the opinion of society. Nurses should bear this in mind when communicating with patients and about patients. They should ensure their commentary, both verbal and written, is accurate and made only to those who are entitled to receive it.

Because the very crux of the damage is to one’s reputation, defamation statutes typically require that a legal action be commenced quickly.3

Someone made a complaint to my manager about my practice. Is this defamation?
Your manager has many responsibilities which include monitoring the quality of nursing care and handling personnel problems. Reporting concerns of this nature to a manager will usually lack the necessary elements of defamation because of the nature of the management role.

This does not mean that all complaints and negative commentary about nurses are immune from legal action. A health care aide was sued in defamation after she wrote a note entitled “Re: R.N. Negligence”, naming a nursing colleague in the unit’s communication book.4 Given the purpose and readership of a communication book, the RN plaintiff would argue that the note was published within the meaning of the law of defamation.

Someone made a complaint to my licensing body about my practice. The investigation has concluded in my favour. Can I sue the complainant in defamation?
Professional licensing bodies are empowered by statute to investigate and decide upon their members’ adherence to professional standards, for the protection of the public. Consequently, reporting to a licensing body an honestly-held belief that a nurse’s practice warrants investigation is not defamation but participation in a legitimate regulatory process. Making such a report is a “privileged occasion” meaning it is: “... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”5

A defamation suit commenced after a licensing body concluded an investigation in the nurse’s favour would be unsuccessful unless the nurse could provide evidence that the person making the report knew the allegations were false. The Quebec Court of Appeal came to just this conclusion when a registered nurse sued a dissatisfied patient’s husband in defamation after he complained about her practice to the Montreal Graduate Nurse Association. The Court of Appeal decided that the patient’s husband acted in good faith, believing he had several legitimate concerns about the RN’s practice. He did not defame the nurse when he reported those concerns to the association.6

  1. Willows v. Williams (1951), 2 W.W.R. (N.S.) 657 (Alta. S.C.). In this case, a nurse successfully sued the chairman of the hospital board for slander. At a board meeting in which her application for matron was being considered, the chairman said, “We made a mistake a year ago and we don’t want to make the same mistake again. She’s of the same calibre as the other one. The matter referred to is ‘dope’.”
  2. For further reading, see A. Tapp, The Legal Risks of E-mail, Canadian Nurse, 97(3), March 2001, 35.
  3. Consider prompt consultation with a lawyer in your jurisdiction if you want to commence a defamation lawsuit. Limitation periods and notice periods for this kind of lawsuit tend to be short.
  4. Mendoza v. St. Michael’s Centre Hospital Society, [1998] B.C.J No. 914 (B.C.S.C.). At the time of publication, no decision had been reported on this aspect of the lawsuit.
  5. Hill v. The Church of Scientology of Toronto, [1995] S.C.J. No. 64.
  6. Moore v. Lenkorn, [1996] A.Q. No. 77 (Que. C.A.).

N.B. In this document, the feminine pronoun includes the masculine and vice versa.

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.

Vol. 12, No. 3, September 2003

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