Defamation By Email For Directors (Or Anyone Who Uses Email)
The brief and cursory nature of many emails contains the inherent risk that statements can be taken out of context or open to multiple interpretations. This can result in resentment, strained relationships or, in extreme cases, lawsuits. A statement about someone that lowers the esteem of ordinary members of the public is defamatory. Defamation can include innuendo or suggestions that lower esteem. If such a statement is circulated in an email, it might be actionable. This also applies if the statement is circulated by email among directors relating to a confidential board matter. A 2014 case illustrates.
The board of a cooperative housing held a confidential meeting to discuss the eviction of a coop member. One of the board members left the meeting with a confidential report. Another member of the board, the President, wrote to all of the board members alleging theft by the director who took the report. In response the director sued the President successfully.
The director alleged that the use of the word "theft" imputes a commission of a criminal act and undermines honesty and integrity. In response, the President defended on the basis that: 1) it was true that the director had taken the confidential report, and that 2) he enjoyed a qualified privilege being obligated to warn the other directors about the removal of the document. In order to establish qualified privilege, the President had to establish that he had a reasonable and honest belief that the document had been stolen not simply removed.
The judge, and on appeal, Divisional Court, dismissed the defenses. While it was true that the director had removed the document, it was overreaching to state that the removal was a theft. Moreover, the President had recklessly disregarded truth and lacked an honest, reasonable basis to believe that the document had been stolen.
The case, again, illustrates the danger of hyperbole and rhetoric in emails. Had the President simply referred to the act as "removal" of the document or even "unauthorized removal" the statement would not have been disproportionate to the act and would, likely, not have resulted in a finding of liability.
The Lesson: Scale back and inflammatory or hyperbole in emails. Think twice before you hit send and allow yourself a cool down period before reconsideration.
Van Sickle v Conlon, 2014 ONSC 5437,
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Van Sickle v Conlon, 2014 ONSC 5437,