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In the current Pelicot rape process in Avignon, France, the defendant was sentenced to 20 years in prison by a local criminal court. Can* we (and newspapers) now call him a rapist, even though he still has the possibility to file an appeal? After all, there's a possibility that he will be acquitted in an appelate trial (maybe there was a procedural error). What if he files an appeal and then dies before the appelate court can provide a verdict?

* "Can" in the sense of "is it legal, without risking a defamatory lawsuit" or repercussions from media controlling agencies.

bdb484
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1 Answers1

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To avoid the risk of a defamation lawsuit, any expression should be clear about whether a person has been accused of, or charged with, or convicted of a particular action or criminal offence. It is also best to communicate whether a person convicted is exercising their right to appeal.

As a cautionary tale, see Hall v. Kyburz, 2006 ABQB 294. A person posted flyers that alleged, among other things, "Calgary Police Officers engage in ‘Break and Enter’ as well as kidnapping" and named several officers. The judge held that the author:

is not at liberty to assert that he can prove that the Applicants are, for example, “criminals” based on his interpretation of the law or on alleged events respecting which no charges or convictions were ever commenced or indeed contemplated.

Of course, there is always the defence of "truth," but one is on shakey ground if one is asserting the "truth" of criminality without a conviction or even charge.

"[L]oose language and imputations and accusations of criminality" opens one up to the risk of a defamation claim.

Media organizations should describe the facts as scrupulously as are known to them:

  • what accusations are made and by whom, and what degree of independent verification or justification the organization has for reporting these accusations;*
  • what charges, if any, have been brought by prosecutors;
  • what convictions have been made;
  • what appeal, if any, is available or has been commenced;
  • etc.

* The Supreme Court of Canada has affirmed that one is not off the hook simply by repeating the allegations of someone else: "one should not be able to freely publish a scurrilous libel simply by purporting to attribute the allegation to someone else." If one reports a defamatory accusation, one is still liable for that defamation unless within the "reportage" exception. "If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided: (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made." Simply saying "alleged" is not a magic word that frees one from liability.

Jen
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