Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

Tort Law vs. Criminal Law

Which parties are Private law or Who are the What is the usual
involved in the public law? parties to the remedy?
obligation? action if that
obligation is
broken?
Tort Law private law the defendant the plaintiff sues compensatory
owes an the defendant damages
obligation to the
plaintiff
Criminal Law public law the accused the government punishment
owes an prosecutes the (such as a fine or
obligation to accused imprisonment)
society

 During its early stages, the common law used a system of blood feud
 Tort comes from the French word “tort” (meaning “wrong”), tort generally consists of a
failure to fulfill a private obligation that was imposed by law.
o refers to the breach of a private obligation.
 An obligation in tort law is owed to a person
o tortfeasor—a person who has committed a tort.

Torts and Contracts: Similarities and Differences between torts and contracts
Source of Privity Compensatory Risk
Obligation Damages Management
Tort Imposed by law Enforceable Look backward May take a
regardless of to put the person by
any agreement plaintiff as if surprise
between the the tort had not May require
parties occurred more than a
person is able
to give
Contract Voluntarily Enforceable `look forward Always possible
created by only by or to place the to know the
parties against a party plaintiff as if obligations in
to the contract the contract advance
had been Always possible
performed to limit the
obligations to
promises that
can be fulfilled
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

Types of Torts
Intentional Torts o Assault
o battery
o false imprisonment
o trespass to land
o interference with chattels
o conspiracy
o intimidation
o interference with contractual relations
o unlawful means tort
o deceit
Negligence Torts o occupiers’ liability
o nuisance12
o negligence
o professional negligence
o product liability
Strict liability Torts o animals
o Rylands v Fletcher
Strict Liability
 They do not require proof of any sort of intentional or careless wrongdoing.
o Liability is imposed simply because the defendant was responsible for the
situation that injured the plaintiff.
o Result = while special precautions may reduce the danger of liability, effective
risk management may require the defendant to simply avoid the relevant
activity altogether.
o Strict liability is therefore limited to situations in which the defendant is
involved in some extraordinarily dangerous activity.
Case Brief 3.1: Cowles v Balack (2005)
 The court suggested that Jennifer and David would have been denied damages if they
had consented to the danger after being sufficiently warned.
o On the facts, however, it was not enough for ALS to simply post warning
signs.
o It should have taken steps to ensure its customers were fully aware of those
warnings.
General Principles of Tort Law
Liability Insurance
 Contract in which an insurance company agrees, in exchange for a price, to pay
damages on behalf of a person who incurs liability
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

 Creates the duty to defend  requires thee insurance company to defend, an its own
expense, any lawsuit that is brought against the insured party
 Liability insurance creates tension between 2 of tort law’s most important functions
o Compensation (compensatory function): aims to fully compensate people who
are wrongfully injured
 If tortfeasor cannot personally afford to pay damages, then the plaintiff
will not receive full compensation unless the defendant is insured
o Deterrence (deterrence function): discourages people from committing torts
by threatening to hold them liable for the losses that they cause
 Tort law has little deterrent effect because people know that if
something goes wrong then their insurance will pay for it
Vicarious Liability
 Occurs when one person is held liable for a tort that was committed by another person
 Public policy may require one person to be held responsible for another person’s torts
in certain circumstances
 Compensation 
o serves tort law’s compensatory function by increasing the chance that the
plaintiff will receive damages from either an employee and an employer
 Deterrence
o serves tort law’s deterrence function by encouraging employers to avoid
unusually hazardous activities and to hire the best people available
 Fairness
o It may be appropriate to require a business to bear responsibility for the losses
that its activities create, even if those losses are caused by misbehaving
employees
Ethical Perspective 3.: Bazley v Curry (1999) 174 DLR (4th) 45 (SCC)
 The defendant was a charitable organization that operated a residential care facility for
emotionally troubled children
o The defendant conducted a reasonably thorough investigation before hiring Curry,
but it failed to discover that he was a pedophile
 Sadly, Curry sexually assaulted a number of children, including the
plaintiff, while working for the defendant
 The plaintiff argued that the defendant was vicariously liable for Curry’s actions
 The Supreme Court of Canada held that an employer is vicariously liable for both (i) acts
that it authorized an employee to do, and (ii) other closely connected acts
 The court found that Curry’s actions fell within the second category.
o While accepting that the employer certainly did not want its employees to
sexually abuse the children, the court held that the nature of the employer’s
operation significantly increased the risk of wrongdoing
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

1. An employer is not liable every time an employee does something wrong. As the
Supreme Court of Canada stressed in Bazley v Curry, an employer is not
vicariously liable if an employee’s tort occurred completely outside of the
employment relationship
2. An employer may be held vicariously liable for employees, but not for
independent contractors
o Independent contractor is a worker who is not as closely connected to the
employer’s business as is an employee
Several factors make it more likely that a worker will be classified as an employee:
 Control 
o The employer generally controls what is done, how it is done, when it is done, and
where it is done.
 Property 
o The worker uses the employer’s equipment and premises.
 Regular Pay
o The worker is paid a regular wage or salary rather than a lump sum at the end of
each project.
 Integration 
o The worker is integrated into the employer’s business and does not carry on an
independent business
3. Vicarious liability does not relieve an employee of responsibility.
a. Rather, it allows the plaintiff to sue both the employer and the employee.
And if both defendants are held liable, the plaintiff is usually entitled to
demand payment from either one.
i. Furthermore, if the plaintiff receives damages from the employer,
the employer is usually entitled to receive the same amount from
the employee
4. an employer may be both vicariously liable and personally liable in the same
situation.
a. Vicarious liability occurs if the employer is responsible for an employee’s
tort. Personal liability occurs if the employer is responsible for its own tort
Business Decision 3.1: Vicarious Liability and Personal Liability
 You suffer a serious injury after falling out of a chairlift at a ski resort. The evidence
indicates that the accident was caused by the fact that the lift was operated carelessly by
Alberto, an employee of the resort. The evidence also indicates that the resort failed to
properly train Alberto.
o Liability could arise in three ways. First, Alberto might be personally liable,
under the tort of negligence, because he operated the chairlift carelessly.
Second, the resort might be vicariously liable because it was Alberto’s
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

employer. And third, the resort might also be personally liable, under the tort
of negligence, because it carelessly failed to train its employee

Tort Law Remedies

Remedy Purpose
Compensatory damages  monetarily repair plaintiff’s loss
 not required if loss is too remote
 not required to the extent that plaintiff failed to mitigate loss
Punitive damages  punish defendant’s reprehensible conduct and deter others
Nominal damages  symbolically recognize that defendant committed tort even though
plaintiff did not suffer any loss
Injunction  prevent commission or continuation of a tort

 Remoteness
o First, the defendant is responsible only for losses that the tort in fact caused.
o Second, even if the defendant’s tort caused the plaintiff to suffer a loss, the court
will not award damages if the connection between the tort and the loss is too
remote
 loss is remote if it would be unfair to hold the defendant responsible for it.
 The judge will ask whether a reasonable person in the defendant’s
position would have realized that a particular activity might cause
the sort of harm that the plaintiff suffered
 It applies to most types of torts, but not to intentional torts.
 Mitigation
o occurs when the plaintiff takes steps to minimize the losses that result from the
defendant’s tort.
o As a general rule, compensation is denied to the extent that the plaintiff
unreasonably failed to mitigate
 Reasonable Steps 
 The plaintiff is responsible only for taking reasonable steps to
mitigate a loss. A court therefore would not expect the customer to
receive a type of treatment that carried a high risk of serious side
effects.
 No Duty 
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

 Although lawyers often refer to a “duty to mitigate,” there is not

really a duty. The plaintiff is not required to mitigate. Damages,
however, will be reduced if the plaintiff did unreasonably fail to
mitigate. Mitigation therefore is a question of risk management.
 Extent of Loss 
 Damages are denied only to the extent that the plaintiff
unreasonably failed to mitigate. Even if a tetanus shot had been
received, the plaintiff still would have missed work for three days.
The defendant consequently must provide compensation for the
plaintiff’s loss of income during that period
 Costs of Mitigation 
 The plaintiff can recover the costs associated with mitigation. If
the plaintiff had received a tetanus shot at a cost of $100 that
amount would be added to the damages.
Alternative Compensation Schemes
 Alternative compensation scheme is a system that allows a person who has suffered an
injury to receive compensation without bringing an action in tort
o Two such systems are especially important:
 workers’ compensation
 involve a series of trade-offs. Workers generally lose the right to
sue in tort for workplace injuries, but in exchange, they gain the
right to claim compensation from a fund without having to prove
that anyone was at fault for their injuries.
 The loss of tort law is the price that workers pay to enjoy access to
a far simpler and much quicker system of compensation
 no-fault insurance
 applies to injuries that are caused by automobile accidents
o two main reasons for the rise of alternative compensation
schemes.
 Fault 
 Tort law is fault-based. It provides
compensation only if a person is injured as a
result of a wrongful act. From the victim’s
perspective, however, the physical and
financial consequences of being injured are
the same even if an injury occurs innocently.
 Cost
 Tort law is inefficient. Since it is based on
an adversarial system in which lawyers
compete on behalf of clients, it requires a
great deal of time and expense.
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

 Major disadvantages of alternative compensation schemes are:

 They provide compensation more often, but they also provide less of it. In tort
law, the plaintiff is usually entitled to recover the full value of a loss.
 the level of compensation is almost always capped. Because they include many
more claimants, such schemes would quickly go broke if they provided full
compensation for every loss
Assault and Battery
 An assault occurs when the defendant intentionally causes the plaintiff to reasonably
believe that offensive bodily contact is imminent
 Important points:
o Belief
 The tort is not based on physical contact. It is based on a
reasonable belief that such contact will occur. The tort is designed
to keep the peace by discouraging people from alarming others. As
a result, you may commit an assault by swinging your fist at me,
even if you do not actually make contact. But if you punch me
from behind, you do not commit the tort of assault if I did not
know that the blow was coming (although you do commit the tort
of battery).
o Reasonable Belief
 It is enough if the plaintiff reasonably believed that bodily contact
would occur. As a result, you may commit an assault by pointing a
gun in my direction, even if the gun is not loaded. It is enough that
a reasonable person would have shared my belief that a gunshot
was possible.
o Imminent Contact 
 The plaintiff must have believed that bodily contact was imminent.
Although that requirement is rather vague, you probably would not
commit an assault if you threatened to kick me two weeks from
today. The threat must be more immediate.
o Offensive Contact 
 An assault can occur even if the plaintiff was not frightened. It is
enough that the defendant threatened some form of offensive
contact. You therefore may commit an assault by swinging your
fist at me, even if I know that you are far too small to do any harm
 Battery consists of offensive bodily contact
 Important points:
o Contact 
 The requirement of “bodily contact” is not strictly applied. It is
enough if the defendant causes something, such as a knife or a
bullet, to touch the plaintiff. It also is enough if the defendant
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

makes contact with the plaintiff’s clothing or with something that

the plaintiff is holding.
o Social Interaction 
 Not every form of contact is offensive. Normal social interaction is
allowed. Consequently, you do not commit a battery if you gently
brush past me in a crowded elevator or if you tap my shoulder to
get my attention. At the same time, however, contact may be
offensive even if it is not harmful. Consequently, you will commit
a battery if you kiss me despite my objections. You may even
commit a tort if your actions are highly beneficia
Invasion of Privacy
 Traditional torts of assault and battery focused on the risk of physical injury
 Tort law is trying to catch up with those technological advances
o There is no general tort of invasion of privacy
 Several reasons why the courts traditionally have been reluctant to recognize a tort of
invasion of privacy
o They want to support freedom of expression and freedom of information.
o They are worried about defining the concept of privacy in a way that fails to strike
a fair balance between the parties.
o They are reluctant to award damages in favor of celebrities who seek out publicity
but then complain when they are shown in a bad light
o They find it difficult to calculate compensatory damages for the kinds of harm,
such as embarrassment, that an invasion of privacy usually causes.
 Privacy is indirectly protected by several torts:
o Trespass to Land
 A photographer who sneaks onto someone’s property to obtain candid
pictures commits the tort of trespass to land.
o Breach of Confidence
 Employees who publish embarrassing details about their employer’s
private life may be liable for breach of confidence.
o Intentional Infliction of Mental Distress:
 The tort of intentional infliction of mental distress was recognized in
Wilkinson v Downton.
 As a practical joke, the defendant cruelly told a woman that her husband
had been badly injured, knowing that she was likely to be terribly upset.
Because none of the traditional intentional torts applied, the court created
a new cause of action that requires proof that the defendant
 acted in an outrageous or unjustified manner,
 either intending to cause emotional distress or callously
disregarding that possibility
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

 caused the plaintiff to suffer a serious emotional injury. The tort

cannot be used to override the freedom to report the truth, but it
can protect privacy interests.
 While intimately involved, a young couple made a sexually explicit video
on the understanding that it would not be shown to anyone else. The
young man nevertheless shared the video with his friends and posted it
online. His disgraceful behavior emotionally devastated the young woman
and resulted in her severe depression. In addition to issuing an injunction
that prohibited the defendant from showing the video, the court awarded
$50 000 in general damages, $25 000 in aggravated damages, $25 000 in
punitive damages.
o Abuse of Private Information
 Despite rejecting a tort of invasion of privacy, English courts have
recognized a tort of abuse of private information. - Consequently,
supermodel Naomi Campbell was able to sue a newspaper that published a
photograph of her coming out of a Narcotics Anonymous meeting.
o Misappropriation of Personality
 A company that makes unauthorized use of a celebrity’s image to sell its
own products may commit the tort of misappropriation of personality.
o Negligence
 A newspaper that ignores a judge’s instructions and publishes the name of
a police officer who had been sexually assaulted during an undercover
investigation may commit the tort of negligence
 While those torts provide some protection, many people believe that there is room for a
separate tort of invasion of privacy. New Zealand’s highest court recently accepted that
argument, and Australia’s highest court moved in the same direction.
Case Brief 4.2: Hollinsworth v BCTV [1999] 6 WWR 54 (BC CA)
 the defendant was romantically involved with the plaintiff’s ex-husband
o Over a four-year period, the defendant abused her position with BMO to view the
details of the plaintiff’s bank account 174 times. When the bank confronted the
defendant about the issue, she admitted that she had no legitimate reason for
looking at the plaintiff’s information. Her only explanation was that she wanted to
see if her boyfriend—the plaintiff’s ex-husband—was paying child support to the
plaintiff. She then apologized and promised not to misbehave again. The plaintiff,
however, believed that she was entitled to more. She sued the defendant for
invasion of privacy and demanded compensatory and punitive damages
 four possible types of privacy torts:
 intrusion into the plaintiff’s seclusion or private affairs
 public disclosure of embarrassing information
 publicity that places the plaintiff in a bad light
 unauthorized use of the plaintiff’s likeness or image
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

o The new tort of intrusion upon seclusion requires the plaintiff to prove that the
defendant
 intentionally
 invaded the plaintiff’s private affairs without legal justification
 in a way that a reasonable person would consider highly offensive
False Imprisonment
 False imprisonment occurs when a person is confined within a fixed area without
justification
o Confinement 
 An actual prison is not necessary. The tort can be committed if a person is
trapped in a car, locked in a room, or set adrift in a boat. But in any event,
the confinement must be practically complete. The defendant does not
commit a false imprisonment by obstructing one path while leaving
another reasonable path open. Nor is the tort committed if the plaintiff can
easily escape.
o Psychology 
 Physical force is not necessary. The detention may be psychological.
o Risk Reduction 
 Because a police officer has a wider power of arrest than a private citizen,
a business person may reduce the risk of liability by calling a police
officer, instead of directly arresting a suspect. That tactic, however, will
not eliminate the risk. The business may still be held liable if it directed an
officer to make the arrest, rather than merely state the facts and allow the
officer to draw a conclusion.
o Malicious Prosecution 
 Malicious prosecution occurs when the defendant improperly causes the
plaintiff to be prosecuted. The focus is not on detention or imprisonment,
but rather on criminal proceedings.
 The court has to be satisfied that
o the defendant started the proceedings
o out of malice, or for some improper purpose
o without honestly believing on reasonable grounds that a
crime had been committed
o the plaintiff was eventually acquitted of the alleged crime
o An imprisonment is false only if it is done without authority
 Police Officer 
o A police officer may arrest anyone who is reasonably suspected of
 being in the act of committing a crime
 having committed a serious crime in the past. If that test is satisfied, the
police officer cannot be held liable, even if the person who was arrested
was actually innocent.
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

 Citizen 
o The rules are much narrower for private citizens—including security guards.36 A
private citizen is entitled to make an arrest only if a crime is actually being
committed by the suspect. If, in fact, no crime is being committed, the arrest is
unjustified. An unjustified arrest may lead to tort liability, even if the person who
made the arrest acted honestly and reasonably. The law generally favors a
customer’s freedom of movement over a store’s desire to protect its property
Torts Related to Reputation
 Deceit
o occurs if the defendant makes a false statement, which it knows to be untrue,
which it intends to mislead the plaintiff, and which causes the plaintiff to suffer a
loss
 False statement
o The plaintiff must prove that the defendant made a false statement
o statement may take any form: a spoken word, a written document, a meaningful
gesture, and so on
 Half-truth
 A false statement may consist of a half-truth. That will be so if, in
persuading you to buy my business, I present gross profits as if
they were net profits. What I said was true, but misleading. I
effectively made a false statement.
 Failure to Update Information
 A false statement may consist of a failure to update information..
 Caveat Emptor
 The general rule in the commercial world is caveat emptor: “let the
buyer beware.” The seller usually has no obligation to volunteer
information. It is the buyer’s responsibility to ask questions and
undertake investigations
 Knowledge
o The plaintiff must prove that the defendant knew, at the time of making the
statement, that it was false
 Intention
o Deceit requires proof that the defendant made the false statement with the
intention of misleading the plaintiff. That does not mean, however, that the
defendant must make the statement directly to the plaintiff
 Reasonable Reliance
o Deceit requires proof that the plaintiff suffered a loss as a result of reasonably
relying on the defendant’s statement. The plaintiff’s reliance is “reasonable” if a
reasonable person might have reacted to the defendant’s statement in the same
way
 Past or Present Fact 
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

 Liability is possible only if a statement pertains to a past or

existing fact
 Implied Statement 
 Sometimes, however, a statement of fact may be implied by an
opinion or a prediction
 Remedies
o The tort of deceit supports the usual range of remedies. It is important to
remember, however, that compensation usually looks forward in contract, but
backward in tort.In a case of deceit, a court will try place the plaintiff as if the
defendant had never made the false statement—not as if the defendant’s statement
had been true
o The tort of occupiers’ liability requires an occupier of premises to protect visitors
from harm. Three parts of that definition require comment.
 Occupier 
o An occupier is a person who has substantial control over premises. Notice that the
critical element is control, not ownership. A tenant, for instance, can control an
apartment without owning it.
 Visitor 
o A visitor is any person who enters onto premises. We will discuss different types
of visitors shortly.
 Premises 
o Premises can be almost any physical space that people occupy. Apartments and
offices certainly count, but occasionally, so do elevators, trains, planes, and
automobiles
 the common law rules (which were made by judges)
 the statutory rules (which were made by legislators)
Traditional Rules for Occupiers’ Liability
Type of Description of Visitor Occupier’s Obligation
Visitor
trespasser a person who does not have permission to not to intentionally or recklessly
enter the premises (eg a burglar) injure a trespasser (eg by setting a
trap for a burglar)
licensee a person who has permission to enter the to protect a licensee from hidden
premises but who does not further the dangers that were actually known
occupier’s economic interest (eg a social to the occupier
guest)
invitee a person who has permission to enter the to take reasonable care to protect
premises and who furthers the occupier’s an invitee from unusual dangers
economic interests (eg a business that the occupier knew or should
customer) have known about
contractual a person who enters into a contract use the to a contractual obligation to
entrant premises, rather than to receive services make sure that the premises were
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

that are offered on the premises (eg a hotel as safe as reasonably possible
guest, but not a restaurant diner)

 number of problems with the traditional law of occupiers’ liability

 Broad Categories 
o The traditional rules lump different types of people together.
 Distinguishing Categories 
o It is often difficult to distinguish between the different categories. That is
especially true for licensees and invitees.
 Changing Categories 
o A visitor’s status may change from one moment to the next. For example, a
customer who refuses a request to leave a store is transformed from an invitee into
a trespasser.
 Hidden and Unusual Dangers 
o Under the traditional rules, judges must distinguish between hidden dangers and
unusual dangers.
 Trespassers
o An occupier must do more than simply refrain from intentionally or recklessly
hurting a trespasser. The law now uses a duty of common humanity that strikes a
balance between the parties. The occupier’s obligations are determined by a
number of factors, including:
 the age of the trespasser
 the reason for the trespass
 the nature of the danger that caused the injury
 the occupier’s knowledge of that danger
 the occupier’s cost of removing that danger
 Licensees and Invitees 
o The distinction between licensees and invitees is now generally ignored. An
occupier must protect them both from unusual dangers.
 Lawful Visitors 
o The courts in Newfoundland and Labrador have gone even further. An occupier in
that province is required to use reasonable care toward all lawful visitors
Unlawful Means Torts
 unlawful means tort occurs if the defendant committed an unlawful act against a third
party with the intention of causing the plaintiff to suffer an economic loss
 Supreme Court of Canada emphasized several points:
o Parasitic 
 The tort is parasitic. To win, the plaintiff must latch onto a tort claim that
the third party has against the defendant.
o Intention 
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122


Liability requires proof that the defendant committed a wrong against the
third party with the intention and for the purpose of causing the plaintiff to
suffer an economic loss.
o Actionable Wrong 
 Earlier cases adopted a very broad definition of “unlawful.” They merely
required the plaintiff to prove that the defendant was “not entitled” to treat
the third party as it did.

Business Torts—A Summary

Name of Tort Unlawfulness Intent to Harm

Conspiracy defendant’s act may be lawful lawful act—hurting plaintiff must be
or unlawful defendant’s primary purpose

unlawful act—hurting plaintiff must be

reasonably foreseeable to defendant
Intimidation defendant must threaten defendant’s act must be directed at
unlawful act against plaintiff plaintiff—but hurting plaintiff need not
or third party be defendant’s primary purpose
Interference with defendant directly induces defendant must intend to cause breach
contractual third party to breach contract of contract—but hurting plaintiff need
relations with plaintiff not be defendant’s primary purpose
Unlawful means defendant commits civilly defendant’s act must intend to cause
tort actionable wrong against a plaintiff to suffer economic loss
third party

Defamation
 Defamation occurs when the defendant makes a false statement that could lead a
reasonable person to have a lower opinion of the plaintiff
 A statement is defamatory only if a reasonable person would have thought that it referred
to the plaintiff
o Reasonable Person 
 There is no need for proof that the defendant intended to defame the
plaintiff. It is enough if a reasonable person would believe that the
defendant was referring to the plaintiff
o Living Person 
 The tort of defamation is limited to living persons
o Groups 
 Liability may be imposed even if the defendant did not name or expressly
identify the plaintiff. The crucial question is whether a reasonable person
would think of the plaintiff after hearing the defendant’s comment
 Slander is a defamatory statement that is spoken
 Libel is a defamatory statement that is written
Chapter 3, Pages 61-75; Chapter 4, Pages 81-87, 96-100; Chapter 5, Pages 110-122

 There cannot be defamation without publication. Publication occurs when a statement is

communicated to a third party. Remember that the tort is concerned with the protection of
reputations

Defamation Defenses

Defense Elements
Justification  statement must be true

Absolute privilege  any statement made in circumstances where people must

speak without fear of liability:
o parliamentary proceedings
o high government officials discussing government
business
o judges, lawyers, parties, and witnesses during
court proceedings
o spouses

Qualified privilege  statement made without malice

 by a person with a legal, moral, or social duty to speak out
 to a person with a duty to receive

Public interest responsible  statement by a journalist

journalism  meets standards of responsible journalism
 story that public was entitled to hear

Fair comment  statement made without malice

 regarding issue of public interest
 statement of opinion rather than fact
 opinion could be honestly held by someone