There are some places where the law needs to let people speak their minds; to be free to express themselves - defamation be damned!
In these cases, the defendant essentially says "yeah; I said that all right but because of where I was or the context in which I said those defamatory things, I can fully shield myself with the absolute privilege".
The common law weaves and bobs as it meanders along it's path of evolution and this is certainly true in defamation law. Sometimes, when asked what the state of the law is in defamation, a lawyer means no jest when he replies: "well, what time is it?"
The law can and does change fast. It changes in any common law jurisdiction and then that precedent applies pressure elsewhere and either dies if it finds no takers, or starts a process of change.
This is certainly true of the absolute privilege in defamation law.
The two other absolute privileges are words spoken within the precincts of a legislative assembly or a document produced therein, often referred to as parliamentary privilege.
Also benefiting from an absolute privilege are words spoken or written in affairs of state. When Ronald Reagan called the former Soviet Union an "evil empire", it just would not do if the Californian faced a defamation claim in the result.
For lawyers and others who communicate regularly within the justice system, the absolute privilege is essential. You have to make allegations of fact to stake an action. Usually, when you commence an action, all you have are the impressions and perspective of one side; how they will pan out during a court case can sometimes be guesswork even for the most experienced lawyer. As Justice Brett wrote in Munster v Lamb:
"A counsel's position is one of the most utmost difficulty. He is not to speak of that which he knows. He is not called upon to consider whether the facts with which he is dealing are true or false."
To jump into litigation, one has to be free, unshackled from the binds of general defamation law.
The editors of Halsbury's Laws of England pride themselves in stating the law using as few words as possible and in this regard, they do us all a favour with this foray:
"No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. The privilege extends to documents properly used and regularly prepared for use in the proceeding."
Similarly, Westlaw's Canadian Encyclopedic Digest, under "Defamation" (2010):
"No action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law. Those statements are absolutely privileged, the immunity resting upon grounds of public policy and convenience, with the object of securing the free and fearless discharge of high public duty in the administration of justice.
"Unlike a qualified privilege, the absolute privilege applies even if the statements are made maliciously or without reasonable or probable cause."
In MJ v DJ, Justice Jackson of the Saskatchewan Court of Appeal wrote :
"Absolute privilege exists not to protect persons who have made malicious statements, but to protect those involved in the justice system from the necessity of having to weigh their words for fear of an action in defamation. It is designed to encourage freedom of speech and communication in judicial proceedings, and its need is borne out, at least in part, by necessity."
The privilege extends itself not just to common courts of law but also to quasi-judicial tribunals. In Trapp v Mackie, Justice Diplock set out a number of factors which can assist in determining if defamatory statements made before a tribunal benefits from the privilege:
"[O]ne must consider under what authority the tribunal acts..., the nature of the question into which it is its duty to inquire ..., the procedure adopted by it in carrying out the inquiry .., and ... the legal consequences of the conclusion reached by the tribunal as a result of the inquiry."
See the Legal Definition of Judicial Process.
The privilege extends to reporting on court proceedings as well, such as reiterating the contents of reasons for judgment.
The courts are not without some mechanism to reign in the crazies and they can always invoke their contempt of court powers if someone takes their absolute privilege too far.
How far will the absolute privilege go? It will not protect the witness for words spoken before or after giving evidence under oath.
The revered Gatley on Libel and Slander obfuscates the law by suggesting that the relevance or irrelevance of the defamatory statement in regards to the judicial proceedings is, well, irrelevant! If it is made in the course of judicial proceedings, that's the end of the matter.
But then, in the 10th Edition (2004), the suggestion is made that in some instances, where the witness seems to intentionally take advantage of his protection to make some gratuitous and defamatory charge against a person, that he or she might then be exposed to a defamation claim!
Off to the cases.
Wrongful Diversion of Funds
In Simons v Carr &. Co., two lawyers were each representing parties to active litigation when Carr wrote to Simons: "it may have been wrongful for you to divert such funds". Five days later, Simons launched a defamation suit claiming that Carr's letter suggested professional impropriety.
Justice Nash of the Alberta Court of Queen's Bench hung on the fact that the letter was within the context of active litigation adding:
"The letter ... is protected by absolute privilege, it having been made in furtherance of legal proceedings. Lawyers should feel free to communicate, on behalf of their clients, with lawyers of opposing litigants."
It May Be A Hardship But ....
In Goffin, the plaintiff filed a defamation claim when defamatory statements were made of him by a witness answering question during a judicial inquiry. The claim was rejected, Justice Field writing:
"[A] witness in a court of justice is absolutely privileged in respect of evidence he gives.
"It may be a hardship upon individuals that statements of a defamatory nature could be made concerning them, but the interests of the individual is subordinated by the law to a higher interest, viz., that of public justice, to the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences."
Barrister v Solicitor
In Munster v Lamb, a barrister (Munster) was subjected to some brutal allegations made by a solicitor (Lamb), even alleging criminal conduct. On appeal, the judge wisely noted that while defamation occurs:
"... if they are made on a privileged occasion, from the very moment when they are made, are not libel or slander of which the law takes notice."
I Did What?!
In MJ v DJ, a wife made the statements against her husband in a letter written to the Law Society in which she complained about the husband's lawyer. The letter added that her husband had sexually assaulted their young son, even though the husband had been acquitted of this charge. The husband sued his wife in defamation. The wife replied that as the law society has disciplinary powers over lawyers and often act as quasi-judicial body in their regards, her letter was absolutely privileged. The wife struck for summary judgment, saying that given the absolute privilege context of the statement, the defamation claim had no prospect of success.
The Court refused to strike the claim, leaning heavily on the "Gatley obfuscation" mentioned above, thus prying open, ever so slightly, the door in regards to the relevancy of statements made and the availability of an absolute privilege.
This is a very complex area of the law, with an ever-changing landscape of cases coming from common law jurisdictions in North America and across the Atlantic. As the administration of justice evolves with new technologies, emerging and unanswered questions will result as the absolute privilege will always be tugged this way and that, at times to shield legitimate witnesses so that they can testify freely, but on other occasions lowered just enough to catch and excise those who would use the privilege to simply wreck havoc in Court with another's reputation. If you have a defamation question, you may be penny wise to avoid being pound foolish to purchase a bit of time with a knowledgeable lawyer on the topic, if one can ever find one that's affordable!
- Brown, R., The Law of Defamation in Canada, 2nd Ed., Volume 2, (Toronto: Carswell, 2009).
- Dewe v. Waterbury 6 S.C.R. 143 (1881)
- Duhaime, Lloyd, Legal Definition of Defamation
- Duhaime, Lloyd, Legal Definition of Judicial Process
- Duhaime, Lloyd, Legal Definition of Perjury
- Duhaime, Lloyd, Malicious Prosecution
- Duhaime, Lloyd, Tort and Personal Injury Law
- Duhaime, Lloyd, Tort & Personal Injury Law Dictionary
- Goffin v Donnelly 6 Q.B.D. 307 (1881)
- Milmo, P. and Rogers, W., Gatley on Libel and Slander (London: Sweet & Maxwell, 2004), pages 13.1 to 13.50
- Munster v. Lamb,  11 Q.B.D. 588
- MJ v DJ, 2000 SKCA 53
- Simons v. Carr & Co., 41 Alta. L.R. (3d) 13
- Trapp v Mackie  1 WLR 377
- Waterbury v. Dewe, 16 N.B.R. 670 (1876, NBSC)