The experience of the past ten years confirms that very large damages in defamation cases in British Columbia are relatively rare. We can count only five cases since 2001 in which the damage awards were $200,000 or higher.
In contrast most damage awards for defamation in this Province remain between $10,000 to $40,000 at the lower end of the range and up to $150,000 at the higher end of what we refer to as the “conventional range”. The overwhelming majority of assessments fall within the “low” ($10,000 to $40,000) and “mid-level” ($60,000 to $80,000) range, with relatively few at the higher level ($100,000 to $150,000).
As to what explains the wide differences in the level of damages, the seriousness of the wrongful imputation (the content of the defamatory words) is one factor. But rarely does the content alone explain the level of damages.
The scope of publication is another well recognized factor. Mass media dissemination (and distribution by Internet) is a key factor that may – and in many cases will – escalate damages.
But a third cluster of factors – which appears to be most significant in moving cases to the highest level of damages – concerns the conduct and motives of the defendant both during and after publication and even after the commencement of litigation. In cases where there is a persistent, willful and repeated pattern of publishing known falsehoods (or publishing statements with reckless indifference to whether they are true or not) the highest level of damages is more likely to result. Other instances of very high levels of awards have been made where defendants by their conduct even after the start of litigation have tended to aggravate the injury, humiliate or insult the claimant: in such cases the courts have acknowledged that only a very high level of damages may be sufficient to achieve the “vindication” of reputation which is one of the key purposes of a damages award in a defamation case.
Three of the recent very large awards in British Columbia (Ager v. Canjax Publishing Ltd. (2005), WeGo Kayaking Ltd. v. Sewid (2007), and Newman v. Halstead (2006)) involved electronic media. But caution must be taken in assuming that Internet and e-mail has generally escalated the level of damages. During the past ten years there have been many other defamation decisions involving the Internet and e-mail. In the vast majority of those cases there is nothing to suggest that publication by Internet or e-mail has resulted in a significantly higher level of damages than exists in other cases. Electronic media offers a potentially very large audience, and a large audience can increase the injury to reputation. But the mere fact of publication by electronic media in the absence of other aggravating factors has not generally lead to a higher level of damages.
In the forthcoming second and third parts of that article we will take a more detailed look at the more conventional range of damage awards, and we will look specifically at cases involving Internet and e-mail.
The level of damages in many cases is determined by how a defendant responds and handles the matter after a complaint is first received. Decisions made immediately after the complaint and even decisions taken after the start of litigation can significantly affect the level of damages.