Does qualified privilege apply in a “public space”?

In Rodrigues v. Toop, 2011 ONSC 794, the Ontario Superior Court of Justice court recently considered whether qualified privilege applied to a communication in a public space.

The Plaintiffs were members of a union local executive.  The Defendant was a union steward who distributed a flyer in a public car park to individuals who identified themselves as union members, containing allegedly defamatory statements about the members of the executive.  The issue was whether qualified privilege attached to the communications.  The Plaintiffs argued that when the flyers were distributed in a public place and not at a union meeting, qualified privilege no longer applied.

The court held that the Defendant’s method of communication “was less than ideal” but that qualified privilege attached because, while the distribution of the flyer took place in a public space, “it was not a public message”.  The key factual finding for the court was that there was no evidence that the Defendant had distributed the flyers to any member of the general public (ie. to a non union local member) and that therefore “the reputation of the Plaintiffs was not tainted in the general public”.

This decision represents a potentially important application of the principle that qualified privilege will only attach where the person who makes the statement has an interest or a duty to make it to the person to whom it is made, and that the other person has a corresponding interest or duty to receive it.  It remains to be seen whether the “public space” vs. “public message” analysis will take hold.

A link to the decision is here.