Qualified privilege

How BC law treats it

Qualified privilege is mainly a common law defence. In Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, the Supreme Court explained that it attaches to the occasion, not the statement: where the speaker has a duty or interest to communicate and the recipient a corresponding duty or interest to receive, the defendant is protected even if the statement turns out to be false. BC's defamation statute is the Libel and Slander Act, RSBC 1996, c 263; BC has no "Defamation Act". The privilege is defeated in two ways. First, malice: the speaker was dishonest, knew the statement was false or was reckless about its truth, or spoke for an improper purpose. Second, exceeding the occasion: the statement went beyond what the duty required or was published to people with no interest in receiving it, such as copying a complaint to the whole industry. Other defences cover other situations. Statements by judges, counsel, parties and witnesses in court proceedings attract absolute privilege, which cannot be defeated by malice. Media and others reporting on matters of public interest rely on responsible communication on matters of public interest (Grant v Torstar Corp, 2009 SCC 61). Qualified privilege is also unrelated to solicitor client privilege or litigation privilege, which protect documents from disclosure. Defamation suits that target expression on matters of public interest can be dismissed early under the Protection of Public Participation Act, SBC 2019, c 3.

What it means for your business

Businesses regularly make statements that could harm reputations: employee references, termination explanations, complaints to regulators or police, reports to a board and warnings to customers about a former employee. Qualified privilege usually protects these when they are honest, relevant and shared only with people who need to know. It does not protect gossip, exaggeration or wide circulation. Careful wording and limited distribution keep a business inside the privilege and reduce defamation risk. Example: A Surrey construction company's manager tells a prospective employer, in response to a reference request, that a former foreman was dismissed after repeated safety violations. The statement is likely protected by qualified privilege if made honestly and only to the person who asked.

Risks and common mistakes

Believing qualified privilege protects any statement made in good faith, regardless of who receives it. Copying a complaint to people with no legitimate interest, which can exceed the occasion. Confusing qualified privilege with solicitor client privilege or litigation privilege. Assuming court testimony depends on qualified privilege, when it attracts absolute privilege. Including speculation or insults in a privileged report, which can support a finding of malice.