Parliamentary Name-Calling and Privilege

With the minority Liberal government on the precipice of defeat, it seems that every day, we are seeing more and more colourful rhetoric from the folks in Ottawa.  There have been comparisons of the Liberals to the Sopranos and the Conservatives to the KKK, to name but two.  One of these has spawned a lawsuit for defamation.

I thought you might be interested in knowing a little about defamation as it relates to MPs and what they say. 

“Defamation” can be loosely described as saying something negative about someone that could harm their reputation.  There are a number of defences to an accusation of defamation.

One obvious defence is that the comment is true.  If a true story makes someone look bad, so be it.  If so-and-so was a bank robber (and there used to be an MP that was a convicted bank robber), then it is not defamatory to call that MP a thief.  However, if you are calling someone a “thief” and there has been no conviction for theft, your comments could start a lawsuit.

A more complicated defence to a defamation claim is the defence that the comment is protected by “privilege”.  The defence of “privilege” is that the circumstances in which the comment was made provides a protection from any liability for making the comment.

For example, if you are a witness in court, you cannot be sued for what you say on the stand.  The purpose of that protection is to ensure that witnesses will say the truth.

There is a kind of privilege called “parliamentary privilege”.  What the parliamentarians say in the House of Commons is privileged as well.  That’s one reason that they say such silly and rude things in the House.  The only repercussions there can be is disciplinary action from the Speaker (or their own party, if they really get out of line).

You may have noticed that the MPs say nastier things about each other in the House than they do outside the House.  You may have seen, on rare occasions, an MP dare another MP to repeat a comment outside the House that was said in the House.  Essentially, that MP is saying:  “You defamed me in the House and if you don’t have the guts to repeat the comment outside the House, you are just a chicken hiding behind privilege.”

To make things more complicated, there are two kinds of “privilege”:  “absolute privilege” and “qualified privilege”.

“Absolute privilege” means just what it says:  if the privilege applies, whatever you say is absolutely privileged and cannot form the basis of a lawsuit.  Parliamentary privilege is one kind of absolute privilege. 

“Qualified privilege” means that the comment will be privileged UNLESS certain circumstances exist.

The defence of qualified privilege will fail if the comment was made with malice.  

Next time you see footage of MP’s calling each other names, pay attention to where they are when they are doing it.  You can be sure that they are