Recent allegations in the Toronto Star of cyberbullying and intimidation amongst doctors at the Ontario Medical Association have led some of my medically-inclined friends and colleagues to enquire: is any of this conduct that can be subject to a defamation lawsuit?
As with any defamation claim, the context of the allegedly defamatory statement is king. Let’s start by going back to brass tacks in a Canadian defamation claim. To make out a successful claim for defamation, you need to prove three things:
- that the defendant made a statement that referred to the plaintiff (either directly, or by implication);
- that this statement was communicated to a third party (i.e. at least one person besides the plaintiff or the defendant); and
- that this statement would lower the plaintiff’s reputation in the eyes of the community.
For the purposes of today’s article, I’d like to focus on point three, as this is the one that would likely be the battleground in any defamation claim by one doctor against another in the sort of situation reported by the Toronto Star.
The key to note is that when deciding whether something is defamatory, any court must look at what exactly was said or written, and the circumstances in which the publication was made. The law of defamation holds that for a publication to be legally libellous, a court must be convinced that the average person on the street hearing/reading the statement would actually think less of the plaintiff to whom the statement refers.
Take the following example: an argument over a crowded email thread where one doctor calls the other a “jerk”. Absent a very specific context, this is not likely to be legally defamatory. The reason is that any third party on the thread (our metaphorical average member of “the community”), would likely see the defendant’s statement as inspired by personal dislike, as opposed to the prospective complainant’s poor character or conduct.
Contrast that with calling someone a “thief” or a “negligent doctor” over the same email thread. Such a comment is more likely to be seen to go right to the heart of the plaintiff’s character – it impugns morals and/or professionalism.
These two examples illustrate the difference between what the courts have called legal defamation versus “mere invective”. Put another way, the statement must hurt your reputation, not just your feelings.
Even so, proving legal defamation is just the threshold question. The more practically important question becomes one of damages, or, the amount of harm actually caused by the statement. It is this concept that will ground the court’s decision on how much money a successful plaintiff is entitled to.
Therefore, a court will always ask: “O.K., but what’s the harm?” If the plaintiff can’t tie the defamatory statement to any real loss of money or reputation, then the claim may not be worth brining in the first place.
From that perspective, the best candidates for a defamation claim like those reported in the Star are statements by a defendant that lead the plaintiff to lose clients, patients, job opportunities or general prestige within the plaintiff’s profession. Regarding a loss of “general reputation”, think of a case where the defendant is defamed over an email thread, leading he or she to be widely ridiculed or shunned at a subsequent medical conference, or amongst the wider profession.
Defamatory can be especially damaging in fields like medicine where the profession is relatively small and tight-knit. A well-aimed defamatory statement in a letter or over an email can mean the difference between a medical student or doctor getting their next big promotion or professional opportunity. If the statement is particularly harmful, it can affect an entire career.
In sum, the key for any prospective defamation plaintiff is to think critically about two questions: (1) does this statement hurt my reputation, or just my feelings?; and (2) if it’s the plaintiff’s reputation/competency etc. that’s on-the-line, how much harm has been caused?
Lawsuits are lengthy and expensive endeavours, so for those considering a defamation claim, the damage to your reputation must be worth the trouble of a court case.
Mark Donald practices in the area of online media law, including defamation, invasion of privacy and harassment claims. If you have a legal dispute, you are most welcome to schedule a consultation with Mark. He can be reached at ph: 416-681-9615, or, [email protected]
Note: This article is a general survey of the law and expresses Mr. Donald’s personal views on the subject matter discussed. It is not a substitute for, nor does it constitute legal advice. Viewing this article does not create a lawyer-client relationship.