If a defendant asserts that the facts in the impugned statements are not true or substantially true and/or fair comment, can they be privileged in a defamation action?
British Columbia, Canada
The following excerpt is from McKerracher v Neustater, 2022 BCSC 389 (CanLII):
In the alternative, the defendant asserts that the facts in the impugned statements are true or substantially true and/or fair comment. The law recognizes that a response to an attack on a person’s character or conduct constitutes an occasion of qualified privilege and, absent malice, defamatory statements made in the course of responding to an attack are privileged. In Richardson v. Vancouver (City), 2006 BCCA 36 our Court of Appeal said the following at para. 38 with respect to this aspect of privilege: … [A] person whose character or conduct has been attacked is entitled to answer the attack, and any defamatory statements he makes about the person who attacked him will be privileged provided they are bona fides and are fairly relevant to the accusations made.
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