Acts and Regulations

D-5 - Defamation Act

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Repealed on 1 September 2011
CHAPTER D-5
Defamation Act
Repealed: R.S.N.B. 2011, Schedule A
Definitions
1In this Act
“broadcasting” means the dissemination of any form of radioelectric communication, including radiotelegraph, radiotelephone and the wireless transmission of writing, signs, signals, pictures and sounds of all kinds by means of Hertzian waves;(radiodiffusion et télévision)
“defamation” means libel or slander;(diffamation)
“newspaper” means a paper containing news, intelligence, occurrences, pictures or illustrations, or remarks or observations thereon, printed for sale and published periodically, or in parts or numbers, at intervals not exceeding thirty-one days between the publication of any two of such papers, parts or numbers;(journal)
“public meeting” means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether admission thereto is general or restricted.(assemblée publique)
R.S., c.58, s.1
Presumption of damage
2An action lies for defamation and in an action for defamation, where defamation is proved, damage shall be presumed.
R.S., c.58, s.2
Pleadings
3In an action for defamation the plaintiff may allege that the matter complained of was used in a defamatory sense, specifying the defamatory sense without alleging how the matter was used in that sense, and the pleading shall be put in issue by the denial of the alleged defamation; and where the matter set forth, with or without the alleged meaning, shows a cause of action, the pleading shall be sufficient.
R.S., c.58, s.3
Effect of written apology
4In an action for defamation in which the defendant pleaded a denial of the alleged defamation only, or has suffered judgment by default, or judgment has been given against him on motion for judgment on the pleadings, he may give in evidence, in mitigation of damages, that he made or offered a written apology to the plaintiff for the defamation before the commencement of the action, or, if the action was commenced before there was an opportunity of making or offering the apology, that he did so as soon afterwards as he had an opportunity.
R.S., c.58, s.4
Effect of payment into court by defendant
5The defendant may pay into court, with his defence, a sum of money by way of amends for the injury sustained by the publication of the defamatory matter, with or without a denial of liability, and the payment shall have the same effect as payment into court in other cases.
R.S., c.58, s.5
Power of jury to give general verdict
6On the trial of an action for defamation the jury may give a general verdict upon the whole matter in issue in the action, and shall not be required or directed to find for the plaintiff merely on proof of publication by the defendant of the alleged defamation and of the sense ascribed to it in the action; but the court shall, according to its discretion, give its opinion and directions to the jury on the matter in issue as in other cases; and the jury may on such issue find a special verdict, if they think fit so to do, and the proceedings after verdict, whether general or special, shall be the same as in other cases.
R.S., c.58, s.6
Consolidation of actions
7Upon an application by two or more defendants in two or more actions brought by the same person for the same or substantially the same defamation, the court may make an order for the consolidation of the actions so that they shall be tried together; and after an order has been made and before the trial of the actions, the defendants in any new actions, instituted in respect of any such defamation, shall also be entitled to be joined in a common action upon a joint application by the new defendants and the defendants in the actions already consolidated.
R.S., c.58, s.7
Consolidation of actions
8(1)In a consolidated action under section 7 the court or jury shall assess the whole amount of the damages, if any, in one sum, but a separate verdict shall be given for or against each defendant in the same way as if the actions consolidated had been tried separately.
8(2)If the court or jury gives a verdict against defendants in more than one of the actions so consolidated it shall apportion the amount of the damages between and against those defendants; and, if the plaintiff is awarded the costs of the action, the judge shall make such order as he deems just for the apportionment of the costs between and against those defendants.
R.S., c.58, s.8
Defense of fair comment
8.1(1)Where the defendant published alleged defamatory matter that is an opinion expressed by another person, a defense of fair comment shall not fail for the reason only that the defendant did not hold the opinion if
(a) the defendant did not know that the person expressing the opinion did not hold the opinion;
(b) a person could honestly hold the opinion; and
(c) the person expressing the opinion was identified in the publication.
8.1(2)For the purpose of this section, the defendant is not under a duty to enquire into whether the person expressing the opinion does or does not hold the opinion.
1980, c.16, s.1
Privilege
9(1)A fair and accurate report, published in a newspaper or by broadcasting, of a public meeting or, except where neither the public nor any reporter is admitted, of proceedings in the Senate or House of Commons of Canada, in the Legislative Assembly of this Province or any other province of Canada, or in a committee of any of such bodies, or of a meeting of commissioners authorized to act by or pursuant to statute or other lawful warrant or authority, or of any meeting of a municipal council, school board, board of education, board of health, or of any other board or local authority formed or constituted under the provisions of any public Act of the Parliament of Canada or the Legislature of this Province or any other province of Canada, or of a committee appointed by any such board or local authority, shall be privileged, unless it is proved that the publication was made maliciously.
9(2)The publication in a newspaper or by broadcasting, at the request of any Government department, bureau or office or public officer, of any report, bulletin, notice or other document issued for the information of the public shall be privileged, unless it is proved that the publication was made maliciously.
9(3)Nothing in this section applies to the publication of seditious, blasphemous or indecent matter.
9(4)Subsections (1) and (2) do not apply where,
(a) in the case of publication in a newspaper, the plaintiff shows that the defendant has been requested to insert in the newspaper a reasonable letter or statement of explanation or contradiction by or on behalf of the plaintiff and the defendant fails to show that he has done so, or
(b) in the case of publication by broadcasting, the plaintiff shows that the defendant has been requested to broadcast a reasonable statement or explanation or contradiction by or on behalf of the plaintiff and the defendant fails to show that he has done so, from the broadcasting stations from which the alleged defamatory matter was broadcast, on at least two occasions on different days and at the same time of day as the alleged defamatory matter was broadcast or as near as possible to that time.
9(5)Nothing in this section limits or abridges any privilege now by law existing, or applies to the publication of any matter not of public concern or the publication of which is not for the public benefit.
R.S., c.58, s.9
Privilege
10(1)A fair and accurate report, published in a newspaper or by broadcasting, of proceedings publicly heard before any court shall be absolutely privileged if,
(a) the report contains no comment,
(b) the report is published contemporaneously with the proceedings that are the subject matter of the report, or within thirty days thereafter, and
(c) the report contains nothing of a seditious, blasphemous or indecent nature.
10(2)Subsection (1) does not apply where,
(a) in the case of publication in a newspaper, the plaintiff shows that the defendant has been requested to insert in the newspapers a reasonable letter or statement of explanation or contradiction by or on behalf of the plaintiff and the defendant fails to show that he has done so, or
(b) in the case of publication by broadcasting, the plaintiff shows that the defendant has been requested to broadcast a reasonable statement of explanation or contradiction by or on behalf of the plaintiff and the defendant fails to show that he has done so, from the broadcasting stations from which the alleged defamatory matter was broadcast, on at least two occasions on different days and at the same time of day as the alleged defamatory matter was broadcast or as near as possible to that time.
R.S., c.58, s.10
Privilege
11Sections 9 and 10 apply to every headline or caption in a newspaper that relates to any report therein.
R.S., c.58, s.11
Application of sections 15 to 18
12Sections 15 to 18 apply only to actions for defamation against the proprietor or publisher of a newspaper or the owner or operator of a broadcasting station or an officer, servant or employee thereof in respect of defamatory matter published in such newspaper or from such broadcasting station.
R.S., c.58, s.12; 2009, c.L-8.5, s.30
Repealed
13Repealed: 2009, c.L-8.5, s.30
R.S., c.58, s.13; 2009, c.L-8.5, s.30
Repealed
14Repealed: 2009, c.L-8.5, s.30
R.S., c.58, s.14; 2009, c.L-8.5, s.30
Venue
15The action shall be tried in the county where the chief office of the newspaper or of the owner or operator of the broadcasting station is situated, or in the county wherein the plaintiff resides at the time the action is brought; but upon the application of either party the court may direct the action to be tried, or the damages to be assessed, in any other county if it appears to be in the interests of justice, and may impose such terms as to payment of attendance money and otherwise as the court deems proper.
R.S., c.58, s.15; 1986, c.4, s.11
Effect of written apology
16(1)The defendant may prove in mitigation of damages that the defamatory matter was inserted in the newspaper or was broadcast without actual gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, the defendant,
(a) inserted in the newspaper in which the defamatory matter was published a full and fair retraction thereof and a full apology for the defamation, or, if the newspaper is one ordinarily published at intervals exceeding one week, that he offered to publish such retraction and apology in any newspaper to be selected by the plaintiff, or
(b) broadcast such retraction and apology from the broadcasting stations from which the alleged defamatory matter was broadcast, on at least two occasions on different days and at the same time of day as the alleged defamatory matter was broadcast or as near as possible to that time.
Effect of payment into court by defendant
16(2)The defendant may prove in mitigation of damages that the plaintiff has already brought action for, or has recovered damages, or has received or agreed to receive compensation in respect of defamation to the same purport or effect as that for which action is brought.
R.S., c.58, s.16; 1987, c.6, s.16
Limitation respecting damages
17(1)The plaintiff shall recover only special damage if it appears on the trial,
(a) that the alleged defamatory matter was published in good faith; and
(b) that there was reasonable ground to believe that the publication thereof was for the public benefit; and
(c) that it did not impute to the plaintiff the commission of a criminal offence; and
(d) that the publication took place in mistake or misapprehension of the facts; and
(e) where the alleged defamatory matter
(i) was published in a newspaper, that a full and fair retraction of and a full apology for any statement therein alleged to be erroneous were published in the newspaper before the commencement of the action, and were so published in as conspicuous a place and type as was the alleged defamatory matter, or
(ii) was broadcast, that the retraction and apology were broadcast from broadcasting stations from which the alleged defamatory matter was broadcast, on at least two occasions on different days and at the same time of day as the alleged defamatory matter was broadcast or as near as possible to that time.
17(2)Subsection (1) does not apply to the case of defamation against any candidate for public office unless the retraction and apology are made editorially in the newspaper in a conspicuous manner or broadcast, as the case may require, at least five days before the election.
R.S., c.58, s.17
Notice of action
18(1)No defendant in an action for defamation published in a newspaper shall be entitled to the benefit of section 17 unless the name of the proprietor and publisher and address of publication are stated in a conspicuous place in the newspaper.
Evidence
18(2)The production of a printed copy of a newspaper shall be prima facie evidence of the publication of the printed copy, and of the truth of the statements mentioned in subsection (1).
Notice of action
18(3)Where a person, by registered letter containing his address and addressed to a broadcasting station, alleges that defamation against him has been broadcast from the station and requests the name and address of the owner or operator of the station, or the names and addresses of the owner and the operator of the station, section 17 shall not apply with respect to an action by such person against such owner or operator for the alleged defamation unless the person whose name and address are so requested delivers the requested information to the first mentioned person, or mails it by registered letter addressed to him, within ten days from the date on which the first mentioned registered letter is received at the broadcasting station.
R.S., c.58, s.18; 2009, c.L-8.5, s.30
N.B. This Act is consolidated to September 1, 2011.