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I've recently argued for a while with a friend about whether defamation requires intent in cases where a false statement would normally be unforeseen to have any potential impact.

The specific scenario we discussed was as such:

Person A tells person B that person C's favorite number is 6, knowing this to be false.

B then refuses to sign a business deal with C because they hate the number 6 and everyone associated with it, and refuses to believe C when they say 6 is not their favorite number, as they found A particularly convincing.

A was unaware that B hates the number 6, and thus couldn't foresee that saying such a thing would be defamatory, even though they knew it to be false (and, to my understanding, "one's favorite number is 6" isn't something considered to be generally damaging to one's reputation).

Would C have a claim for defamation against A, given that A didn't have intent to defame C ? (even though they're the direct cause of B refusing to do business with C and the harm thusly inflicted on C, and A did in fact intentionally and knowingly lie to B, even without any intent to defame).

I am also wondering if this would change if the statement was about something that would be rarely ever be defamatory but could plausibly be foreseen to be such. For instance, we could reword things slightly:

A tells B that C has a cat, and (unbeknownst to A) B is allergic to cats and thus refuses to go to C's house to sign a commercial deal that has to be signed within a few hours (and C can't convince B fast enough that they don't have a cat or sign the deal elsewhere).

Though saying someone has a cat would not ordinarily be defamatory, some people are allergic to cats, and it seems foreseeable that some would thus find that statement damaging if they happened to be allergic to cats - would that change things ?

Also, we also thought it might be possible that other torts would be applicable w.r.t. economic harm or tortuous interference - it seemed to me that those would require specific intent, but I wouldn't mind knowing if they were somehow applicable here either.

(PS: no idea if slander/libel differences are relevant here - this scenario seems like it could plausibly be either depending on the precise method of communication A uses to "tell" B things (direct spoken meeting or some messaging service))

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    The law on this point differs quite a bit in different countries. U.S. law, for example, differs considerably from English law which in turn are both very different from German law, on this subject. Commented Aug 13 at 0:19
  • Of course, the superlative of the imperfect number 6 is the number 666. And you must not sign deals with the “666 guy”. Commented Aug 15 at 23:17

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Defamation does not depend on intent. It depends on communicated meaning. How would an ordinary person, with the context known to the recipient, understand the statement?

A statement is defamatory as long as it "would tend to lower the plaintiff’s reputation in the eyes of a reasonable person" (Grant v. Torstar Corp., 2009 SCC 61).

The impugned statement may convey something different than its literal meaning.

Courts recognize that meaning is contextual. The defamatory sting of a statement may come from some non-literal meaning.

See Weaver v. Corcoran, 2017 BCCA 160, at para. 71:

Words may convey a defamatory meaning literally, inferentially or by legal innuendo. Literal meaning is conveyed directly; inferential meaning, indirectly; and legal innuendo, by extension based on extrinsic facts. ...

Where the literal meaning of words is in issue, it is unnecessary to go beyond the words themselves to prove that they are defamatory. Where a claim is based on the inferential meaning of words, the question is one of impression: what would the ordinary person infer from the words in the context in which they were used? Both literal and inferential defamatory meaning reside within the words, as part of their natural and ordinary meaning. In contrast, where legal innuendo is pleaded the impugned words take on defamatory meaning from outside circumstances beyond general knowledge, but known to the recipient.

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  • So in Canada, only "reasonable persons" are considered ? If a person has particularly odd opinions (or "non-ordinary" ones in general, even when relatively common, e.g. racist or transphobic opinions), even if they're known to the speaker, they wouldn't be responsible for how that person treats false information they're given, so long as a "reasonable person" wouldn't treat it like that even if they had the same knowledge as the recipient of the speech ? (I was especially wondering about the cat hypothetical, "reasonable persons" are always assumed to not be e.g. allergic to cats ?) Commented Aug 13 at 0:41
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    It is not an assumption that the reasonable person is "not e.g. allergic to cats." But it is almost certain that a judge or jury would conclude that the phrase "C has a cat" does not lower the reputation of C in the eyes of the reasonable person. Commented Aug 13 at 0:49
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    @GabrielRavier the person doesn't just get to decide they are impugned, it's decided in court and the jury will decide if it meets the threshold. "They like the number 6" would not. Commented Aug 13 at 5:15
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    @gnasher729 That might be more along the lines of tortious interference, which can arise with improper meddling in business affairs - a false statement may not be reputationally damaging in general to most reasonable people, but if it's designed to damage a specific business relationship, it can still be against the law. Commented Aug 13 at 13:31
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    @gnasher729 People fail to get jobs all the time, it doesn't usually destroy their reputation. In particular, if the reason is something ideosyncratic about the employer (they have a problem with cat owners), no reasonable person would consider that a stain on their reputation. Commented Aug 13 at 14:10
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Strafgesetzbuch (StGB)

§ 187 Verleumdung

Wer wider besseres Wissen in Beziehung auf einen anderen eine unwahre Tatsache behauptet oder verbreitet, welche denselben verächtlich zu machen oder in der öffentlichen Meinung herabzuwürdigen oder dessen Kredit zu gefährden geeignet ist, wird mit Freiheitsstrafe bis zu zwei Jahren oder mit Geldstrafe und, wenn die Tat öffentlich, in einer Versammlung oder durch Verbreiten eines Inhalts (§ 11 Absatz 3) begangen ist, mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe bestraft.

Translation:

Criminal Code (StGB)

§ 187 Defamation

Anyone who, contrary to their better judgment, asserts or disseminates untrue facts about another person that are likely to make that person contemptible or disparage them in public opinion or jeopardize their creditworthiness shall be punished with imprisonment of up to two years or a fine and, if the act was committed publicly, in a meeting or by disseminating content (§ 11 paragraph 3), shall be punished with imprisonment for up to five years or a fine.

Given that the information about their favorite number or ownership of a cat was not "likely to make that person contemptible or disparage them in public opinion or jeopardize their creditworthiness", this doesn't seem to apply.

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  • unless favorite number of cats is "all of them" or "all the skeletons of them" - the former is a money sink, the latter is a horrible person. Commented Aug 13 at 14:40
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Intent is not relevant for defamation

The elements of defamation are:

  1. That something was published either orally or in writing;
  2. That an ordinary person would consider the material that was published to be defamatory;
  3. That the publication of the defamatory material caused, or was likely to cause, serious harm to the party’s reputation;
  4. The person claiming defamation can be identified in the material that was published; and
  5. There is no legal excuse for the publication of the defamatory material.

There is no requirement in that list that the publication was intended to cause harm, or, for that matter, that the publication itself was intentional. If there was a publication and that publication damaged an identifiable person's reputation, then the tort has been committed. That is, defamation is not an intentional tort like assault or trespass.

Neither of your examples is defamation, but not because of a lack of intent. They are not defamatory because:

  1. No "ordinary person" would consider having the number 6 as a favourite (even though it's wrong, e is obviously the best number), or owning a cat as damaging to a person's reputation.
  2. The damages claimed are not damages to the person's reputation. If they were claimable, they would need another basis for the claim, perhaps tortious interference with contractual relations?
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    Dear Mr. M, on behalf of the number π, you are hereby asked to cease and desist disparaging π's reputation by asserting in print, electronic form, orally, or otherwise that the number e is better. Commented Aug 13 at 18:25
  • Doesn't element 5 contradict the top-line answer? I don't know how Australian courts interpret it, but on a plain reading, it seems like having a lawful intent would defeat an otherwise viable defamation claim. Commented Aug 13 at 20:23
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    @bdb484 “legal excuse” has nothing to do with intent. Legal excuses are defences like truth or public interest or parliamentary reporting. Commented Aug 14 at 0:53
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    Using normal interpretive principles, that seems like it can't be right. If those are defenses (which the defendant must prove), it makes no sense to also make their absence an element of the offense (which the plaintiff must prove). It's surplusage one way or the other. Commented Aug 14 at 14:58
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Intent

Defamation is a tort of 'strict liability', i.e. the claimant does not have to prove the defendant intended to defame the claimant.

Requirement of serious harm to reputation

The claimant must prove the statement caused or is likely to cause 'serious harm' to the claimant's reputation (section 1 Defamation Act 2013).

Other necessary elements

The claimant must prove the statement:

  • is defamatory, which means it would cause an ordinary person to think worse of the claimant
  • identifies or refers to the claimant
  • is published to a third party

Defences

The statutory defences are:

  1. Truth - the imputation conveyed by the statement complained of is substantially true

  2. Honest opinion - (1) the statement was a statement of opinion, (2) it indicated the basis for the opinion, (3) an honest person could have held the opinion on the basis of some known facts

  3. Publication on matter of public interest

  4. Operators of websites

  5. Peer-reviewed statement in scientific or academic journal etc

  6. Reports etc protected by privilege

See Pinsent Masons defamation guide or Channel4's defamation guide.

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    this answer would be improved if you included a "yes" or "no" (or maybe "it depends" or "it's complicated" if it's hard to tell in the given scenario). Commented Aug 13 at 14:05
  • Can you identify any authority for the claim that defamation is a strict-liability offense? I had always understood that a plaintiff would need to prove at least negligence. Commented Aug 13 at 20:30

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