Member Article

The cause of an action in defamation exists to provide some recourse and remedy to victims of falsehoods which can and do cause injury to reputation. In a classic formulation, recently adopted and approved by Geopel J. of Supreme Court of British Columbia, a communication is defamatory if it “tends to harm the reputation of another so as to lower [him, her or it] in the estimation of the community or deter third persons from associating or dealing with them. ¹ If the defamatory communication takes a permanent or semi-permanent form – that is, if it is written, or spoken while being recorded or filmed such that it is preserved in some way – then it is libel, and actionable without proof of actual pecuniary loss. If it is spoken only, then it takes the form of slander and, with some exceptions, only the economic losses that can be proven to have resulted from the false communication can be recovered.²

 

Most often, the objectionable communication takes the form of words that, by reason of their natural and ordinary meaning or imputation. But sometimes a communication can be defamatory, and actionable, even though by their natural and ordinary meaning the words used are not defamatory in themselves. In these cases it is the facts and circumstances that attend to their publication that lend defamatory import to the words in question. Defamatory imputations that depend on an interplay between the impugned words and the facts and circumstances that surround their publication fall, at law, into the category of “true innuendo’.

 

This is an area of some subtlety, and indeed, some confusion in the law. True innuendo is not conceptually tied simply to implied or inferred meanings. ³ Rather, it is the interplay between the communication – which is perfectly innocent on its face – and the extrinsic facts known to a particular recipient of the communication, that produces the harmful effect on reputation.

 

Downard, in his useful text, Libel, ⁴ gives a couple of compelling illustrations of the phenomenon of true innuendo:

…..a notice congratulating the plaintiff on the coming birth of her baby is defamatory by way of innuendo where the persons acquainted with the plaintiff knows that the plaintiff is 18 years old, single and has made no announcement of her pregnancy. Similarly, a statement that “Mr. X is enjoying his honeymoon with Mrs. Y, who he married last Saturday” is not defamatory on its face, but would be defamatory by way of innuendo to persons who know that Mr. X is in fact married to someone other than Mrs. Y.

 

The English cases approach innuendo from the perspective of “extended meaning” – namely, that the extrinsic facts in juxtaposition with the specific words on the specific words an “extended meaning” not discernable if the words are disengaged from that special context. By necessary implication, the extrinsic facts will not be generally known. If it were otherwise, the words would carry the offensive imputation by themselves by reason of the general knowledge of the extrinsic facts. So, the extrinsic facts that set the impugned words in a different and negative light are facts that are known only to a subset of the general population and, often, quite a small one.

 

Importantly, the extrinsic facts that lend defamatory meaning by way of innuendo must exist contemporaneously with the publication of the words in question. This principle is illustrated by a case brought by the famous French jazz violinist, Stephane Grappelli. His agents, without his authority, booked an engagement for him then had to cancel it. In an attempt to protect their own reputations, the agents published a false statement saying that Grappelli would not be performing due to illness. This statement, too, was published without Grappelli’s knowledge or consent. Grappelli actually performed elsewhere on the date of the “cancelled” performance and when he learned of his agents’ shenanigans he sought damages from them on the ground that, by way of innuendo, he would be taken by those aware of the ‘cancellation” to have given a false reason for failing to perform at the engagement booked by his agents. Because the extrinsic fact of his having played at another engagement  on the same date came to be known after the false statement that he had cancelled a concert on that date due to illness (a false but non-defamatory statement, absent innuendo), Grappelli failed to make out his case of defamation based on innuendo.⁵

 

A plaintiff who pleads innuendo must supplement the references to the impugned words with a detailed account, in the statement of claim, of the extrinsic facts that lend the words their “extended” meaning. However, such proof need only establish that there are persons, aware of the extrinsic facts, who could have understood the impugned words in the defamatory sense that they acquire through association with those extrinsic facts. It is generally not necessary to prove that any person actually understood them in that sense. Unlike the case where the alleged defamation is based on the plain and ordinary meaning of the words employed, evidence of the defendants’ intention in publishing the words that take their defamatory color from extrinsic facts is both relevant and admissible – not to liability, but to damages. That is to say, a defendant who is unaware of the extrinsic facts that transformed his or her innocent words into defamatory ones by way of innuendo cannot raise that ignorance as a defence to liability, but it will be considered as a factor limiting exposure in damages. ⁶

 

The extrinsic, contextual facts capable of endowing otherwise innocent words with the offensive meanings that they would otherwise not carry range widely. They can include contemporaneous facial expressions or gestures, or idiosyncratic meanings that users belonging only to a sub-community of speakers would grasp.

 

The unwary and unscrupulous business person, wishing to advance his or her own interests by disparaging a competitor, may take refuge in innuendo believing that he or she is safe because he or she is speaking or writing “in code”, using language that is apparently innocent and that is understandable as something more only to a small group of persons “in the know”. Apart from being disreputable, this is also a vain and legally misguided plan of action. We can imagine the promoter of a mining company who states, falsely and jocularly, on a securities market listserv that competitor ABC Co. is putting all of its efforts into exploiting copper resources, recognizing that ABC built its prosperity wholly on gold and has little experience with copper. If the contemporaneous evidence shows that gold is in steep decline and that a subset of those who follow mining securities know also that ABC has no expertise or experience in the copper market, ABC may be able to make out a claim against the promoter on the ground that, by way of true innuendo, the promoter’s statement conveys to those “in the know” the meaning that ABC is in serious trouble, is bailing out of the area it know best and is investing recklessly in properties outside its range of experience and expertise in a desperate effort to survive. As can be seen, the stratagem of speaking “in code” is just that – a stratagem. And it is one that a court can easily see through. Commercial players like our hypothetical ABC co have much to lose if their reputations for employing sound business judgment are injured, particularly in times of market volatility. The law is not unmindful of the subtleties that may lie behind the communicative behavior of competitors in a “dog eat dog” marketplace, and it furnishes the innocent victim with the tools to obtain redress and a remedy for defamation where the same are warranted.

 

 

1. Keith Dahlen Construction Ltd v. Courte. 2005 BCSC 690 at para. 11.
2. For a fuller exposition of the differences between libel and slander, see T.S. Woods, “Distinguishing libel from Slander”(2005), 14 Can. Corp. Counsel 129.
3. This lies at the heart of the distinction made, at law, between “true” and “false” innuendoes (sometimes called “popular” innuendos) in this sense are innuendoes that arise from implication or inference from the meaning of the impugned words themselves, and not from extrinsic facts that attend publication.
4. P. Downard, Libel (Markham, Ont.: Butterworths, 2003).
5. Grappelli v. Derek Block (Holdings) Ltd. [1981] W.L.R. 822 (Eng C.A.) Stephane Grappelli will, happily, be bettered remembered for his fluid and lively style as a jazz violinist than for his success as a litigant. A collaborator with the legendary Django Reinhart and co-founder of the Quintent du Hot Club de France, Grappelli proved his versatility by joining forces in his later years with performers like Pink Floyd, Paul Simon and David Grisman. Of him, classical violinist Yehudi Menuhin said. “Stephane is like one of those jugglers who sends 10 plates in the air and recovers them all”. Alas, the defamation by innuendo part of the Derek Block (Holdings) Ltd. Case was one plate that fell to the ground with a crash for Grappelli for the technical reason outlined in this article. But on the stage with his violin, there was seldom a misstep or errant note. (A cause of action against the agents for injurious falsehood remained on foot but its disposition is unknown. It was probably settled, one hopes handsomely for the great violinist.)
6. Just as, conversely, proof awareness of the extrinsic facts lending defamatory meaning to otherwise innocent words will be an aggravating factor in relation to damages and may even assist the plaintiff in establishing malice.