Are Reports to the Police Protected From Defamation Suits?

Preserving one’s reputation is a fine value – and one that the law of libel strives to protect. But it’s not absolute, and the law recognizes that some communications are so important that they must trump reputation. That’s why communications that enjoy privilege are defensible in defamation cases.

So is there a qualified privilege when reporting relevant information to the police in good faith, protecting the individual reporting the information from a libel suit? The answer is Yes.

What’s relevant here is the message, and whether it’s defamatory. The messenger is only relevant to issues of malice.

Privilege may be absolute, qualified or statutory. Absolute privilege gives total protection from law suits. For instance, statements made in Parliament are protected by absolute privilege. Qualified privilege may be defeated by proof by the plaintiffs that the defendants acted with actual malice. The degree of statutory privilege depends upon the protection granted by a particular statute.

Qualified privilege attaches to the occasion upon which the communication is made, not to the communication itself. The limits of the duty shape the limits of qualified privilege.

For example, there is a privilege for statements made in Court, including pleadings. Privilege also protects fair and accurate reporting of what happens in Parliament or the courts. In each case, unfettered political speech and forensic advocacy represent such fundamental values that they should not be constrained by the laws of defamation.
Qualified privilege will protect a communication if it is fairly made on a privileged occasion by a person in the discharge of a recognized public or private duty, or for the purpose of pursuing or protecting some private interest, as long as it is made to a person who has some corresponding interest in receiving it. No action can be maintained against such a defendant unless it is shown that the defendant published the statement with actual or implied malice.

So how does this apply to those making statements to the police? The answer is clearly shown in an Ontario case from 2003, Gittens v. Brown, 2003 CanLII 40565 (ON SC), Gittens sued a number of individuals about statements accusing him of theft in his apartment building. One of the defendants, Ghaffari had made statements to the police, requesting an investigation. Though the judge held that the statements were defamatory and awarded damages against some of the defendants, Ghaffari was protected:

[30] Someone who makes a statement to the police about a suspected crime is protected by qualified privilege; he or she is discharging the social duty to help in the detection of criminal activity. The police officer receiving the report has an interest in receiving the information because he or she can investigate it.
[31] Ghaffari wrote her letter under a qualified privilege to a police officer about a suspected crime. I have found that the defendants were not acting with malice when they made their defamatory statements. Therefore, Ghaffari cannot be held liable for damages.

“Citizens making communications important to themselves or beneficial to the public will be protected from liability if not maliciously motivated”

Tip of hat to Ted Panagiotoulias for his help in digging up more of the law.

According to Brown on Defamation, private citizens have a right and duty to assist in the detection of illegal or criminal behaviour, to help ferret out the wrongdoers, and to bring to the attention of the appropriate officials crimes against persons or property, or misconduct and neglect of duty in the administration of public affairs.

Hardaway v. Sherman Enterprises Inc. (1978), 133 Ga. App. 181, 210 S.E. 2d 363 Statements made in good faith pursuant to investigation by police or other officers authorized to investigate crime or criminal activity are made in the performance of a public duty and are privileged…If such were not the case these officers would find it virtually impossible to ferret out the facts and prosecute those who have violated the criminal laws”.

Lightbody v. Gordon (1882) 9 R. 934 at 937-938 (Ct. of Sess.) “When it comes to the knowledge of any one that a crime has been committed, a duty is laid on that person, as a citizen of the country, to state to the authorities what he knows respecting the commission of the crime, and if he states only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom we has given the information is, after all, no guilty of the crime.

Couper v. Balfour 1913, S.C. 492 at 501 (Ct. of Sess.) It is “the right and duty of any citizen who bona fide believes that wrong has been done to lay the alleged facts before the proper authority for investigation”. In performing this service, they need the assurance that their acts of public citizenship will not fall prey to civil actions for damages where they have provided false information in good faith. Where they have acted in good faith, and the information is beneficial to the public or of importance to themselves, they are protected by a qualified privilege as long as they do not act maliciously.

Citizens making communications important to themselves or beneficial to the public will be protected from liability if not maliciously motivated: se Corbett v. Jackson, [1884] O.J. No. 53, 1 U.C.R. 128 (U.C.C.A.). Citizens have a duty to report crimes to law enforcement officers: see Wing Lee v. Jones, [1954] 1 D.L.R. 520 (Man. Q.B.). In Crocher v. Inglis (1889), 16 R. 774 at 778 (Ct. of Sess.), Lord Shand held, “When a person has reason to believe that a crime has been committed it is his duty and his right to inform the police.” The police have an interest in receiving information of a suspected crime: see Wing Lee v. Jones, supra. “The police have always an interest in hearing the particulars of alleged crimes and who is suspected of having committed them:” Bowles v. Armstrong (1912), 32 N.Z.L.R. 409 at 425 (C.A.).

Lupee v. Hogan (1920), 47 N.B.R. 492 at 499 (C.A.). “[I]t has been universally recognized that all material statements made by the persons interested in the decision of a crime during their investigations, and material thereto, are privileged”.

And that’s as it must be – the chill on police work would be impossible if they and members of the public had to worry about defamation all the time.