Defamation and discharging evidence

Defamation and discharging evidence

"I am following up your publication of 28 August concerning the offence of defamation. I would like to know whether, in the event that I communicate to people that a person has committed criminal offences and that this is true, I can also be sued for defamation."

Sylvain

Article 173 of the Criminal Code provides for the possibility of adducing two types of liberatory evidence enabling the perpetrator of defamation to be exempted from any penalty: he or she must either prove the truth or demonstrate good faith. However, the accused is not always allowed to adduce one of the aforementioned types of evidence, so that it is sometimes not enough to have told the truth in order to escape conviction and punishment.

Liberatory evidence will be refused if the accused spoke without sufficient motive (public or private) and acted primarily to speak ill of others. As the above conditions are cumulative, this means that if the accused acted with sufficient motive, he or she will be entitled to adduce evidence in discharge, even if his or her main purpose was to speak ill of others. Conversely, the accused will be able to give evidence in discharge if he did not intend to speak ill of others, even if he did not have sufficient cause to do so.

More specifically, proof of the truth requires the accused to establish that what he or she has alleged, suspected or propagated is true. Proof of the truth must relate to facts that are injurious to honour. If the defamer succeeds in establishing the truth, he must be acquitted. Thus, according to case law, the accused who has alleged the commission of an offence must in principle prove the truth by the criminal conviction of the person concerned.

As for proof of good faith, it is necessary to rely on the elements of which the author had knowledge at the time of his defamatory allegation and to investigate whether he had serious reasons to believe in good faith that what he alleged was true. To establish good faith, two conditions must be met: the author must establish that he had serious reasons for believing what he said and that he actually believed his allegations to be true.

Therefore, if you inform a third party that a criminal offence has been committed, you run the risk of being sued for defamation on the basis of a complaint from the person accused. In this case, you will have the opportunity to provide proof of the person's criminal conviction. However, you must not have divulged this information without sufficient reason and with the sole aim of speaking ill of others.