Defamation, as a legal concept, requires three things to be established on a balance of probabilities before a comment is considered defamatory:
- The words would tend to lower the person’s reputation in the eyes of a reasonable person;
- The words were in fact about, and referred to, the person in question; and
- The words were “published” (i.e., they were communicated to at least one person other than the person the comment was about).
From these requirements alone, it would appear that some workplace communications, such as making a complaint to management or human resources about another employee, or providing a “bad” reference about a former employee, could be considered “defamatory.” However, there are defences to defamation that could apply.
Defences to Defamation
There are multiple defences to defamation, however there are three that are most likely to arise in the context of employment:
- The Truth.
If the statement in question is true than it is not considered defamation. For example, if person A says to person B that person C sent explicit emails, then the comment appears to meet the three criteria for defamation. The comment would lower person’s C reputation in the eyes of a reasonable person, the words specifically referred to person C, and the words were said to at least one person other than person C (i.e., it was said to person B). However, if person A can show that what they said was the truth (i.e., they have records of the explicit emails), then the comments are considered justified and therefore not defamatory.
- Qualified Privilege.
Qualified privilege is a concept that creates situations in which comments that are false or defamatory can be made by somebody without liability. Specifically, qualified privilege applies to situations in which a person has an interest or duty (whether legal, social, or moral) to make the comment to a person who has the corresponding interest or duty to receive it. The reciprocity of the interest or duty is essential. For example, a complaint from an employee to human resources about bad behaviour from her manager will be protected by qualified privilege, but that same complaint posted on social media or otherwise published to the general public would not be protected by qualified privilege.
There are limits to qualified privilege. A comment may not be protected if it was malicious (i.e., there was a motive or ulterior purpose that conflicts with the mutual interest or duty that would create qualified privilege) or if it exceeded the bounds of the privilege (i.e., it includes defamatory matter that is not relevant to a the interest or duty that would create qualified privilege).
- Made Outside the Scope of Employment Duties.
A corporation can be held vicariously liable for the defamatory comments of its employees. However, if those comments were made while the employee was acting outside of the scope of their employment duties, then the corporation may not be vicariously liable for those statements and instead the employee may be individually liable.
Defamation can occur in the workplace, but there are some situations in which the employer may be immune from liability for the defamatory comments. It is important to consult a lawyer to assess the situation.
Stacey Reginald Ball is an experienced Toronto employment lawyer with the Ball Professional Corporation. Our office handles various employment law matters, including wrongful dismissal. If you have questions regarding workplace defamation, please consult a lawyer for advice.