Sandra Richmond is a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch.

It’s not news that a picture can be worth a thousand words. But you should be careful about what that picture is saying – it may be defamatory.

The traditional view is that defamation occurs when you make an untrue statement about a person that hurts that person’s reputation and that causes other people to regard the person with feelings of hatred, contempt, ridicule, fear or dislike.

However, the Ontario Court of Appeal recently held that, even if the statement is true, if other audiovisual elements, like pictures or the sequencing of images, distort the meaning of the statement, the combination can be defamatory.

In this particular case, the Court of Appeal overruled the trial decision that had found that Color Your World was defamed by a cbc television show. But both courts agreed that the combination of visual images with words can be defamatory.

The program in question was a segment called ‘Mercury in Paint’ that aired as part of the consumer affairs television show Market Place in April 1990.

The focus of the segment was that mercury is still used in some latex house paints to prevent bacteria and mold, but that it may be an unnecessary health hazard. People interviewed on the show explained that acceptable levels of mercury in paint were based only on the amount needed to act as an effective preservative and not on what was ‘safe’ for humans.

The program stated that while no studies had been done to determine what health problems might be caused by this exposure, and what levels might be safe, some people felt that mercury shouldn’t be allowed at all.

So far, assuming the statements were true, there’s nothing defamatory. But later the program showed some archival footage about mercury poisoning from industrial emissions. And, while there was nothing untrue about what was said, Color Your World claimed that the way the footage was used was defamatory. The following four ‘scenes’ appeared consecutively:

– Footage of paint cans being filled on an assembly line accompanied by a voice-over that health officials are reviewing the use of mercury in paint and that they thought mercury had been eliminated when its dangers were first discovered decades ago.

– Historical black-and-white footage of Minimata, a Japanese village, while the reporter notes that in the late 1950s people became aware of the modern hazards of mercury when mercury-contaminated industrial pollution had been dumped into Minimata Bay, contaminating the fish and causing mercury poisoning and death for dozens of people.

– Historical color footage of Grassy Narrows, Ont., while the reporter’s v/o explains that mercury pollution from a pulp and paper mill there during the 1960s and ’70s contaminated the local fish supply, causing mercury poisoning in the native population. The reporter continues by saying that cases like these caused the government to require pulp and paper plants and other industries to reduce greatly the amount of mercury pollution they emitted.

– Visuals showing paint cans being filled and capped as they roll through the end of the assembly line, while the v/o states that mercury remained in paint and that by the 1980s the amount of mercury entering the environment from this source was substantial.

Color Your World claimed that the juxtaposition of the images suggested that the paint sold by Color Your World caused the same damage to human health as the mercury pollution found at Minimata Bay and Grassy Narrows. And, it said, later footage suggested that Color Your World sold the paint knowing this.

cbc had tests done and, of 11 paints tested, Color Your World and two other brands of paint were shown to have the highest concentrations of mercury in their latex paint. A representative of Color Your World said that he was not concerned about the presence of mercury in paint because even after 35 billion homes and rooms had been painted, they had no evidence of any mercury problems.

Trial court decision

The trial judge agreed with Color Your World that it had been defamed. While he admitted that the words spoken during the segment were not defamatory, he said that the combination of the words and their presentation were.

He pointed out that, unlike with print media, television shows are transitory and statements made in them cannot be reviewed and studied by the viewer.

As well, he noted, television does not focus only on words. In fact, words may be of secondary importance to elements such as the images shown, the juxtaposition of images, music, tone of voice, inflection, facial expressions, gestures or any combination of them. How words are presented can shade the meaning so much that the words take on a defamatory meaning.

Interestingly, he stated that if the program had not referred to Minimata Bay and Grassy Narrows, or if the producers had made clear that the kind of mercury in latex paint was different from the type found in industrial pollution, there would have been no defamation.

However, because those elements were sandwiched between visuals of paint cans being filled and because the subject of the segment was the potential danger of mercury in latex paint, those references appeared to be directly tied in with the discussion of mercury in latex paint. And the producers had not corrected that impression by explaining that the types of mercury were different.

He awarded Color Your World damages of $70,000 plus costs of nearly $15,000 for engaging a company to conduct crisis management after the broadcast.

Court of Appeal decision

The Court of Appeal disagreed with the trial judge and overruled his decision, saying that an ordinary person would not have found the segment defamatory.

The court felt the ordinary viewer would have known which parts of the segment were historical and that there is a difference between the mercury in paint and the mercury in industrial pollution. A reasonable person would not be led to believe that the mercury in paint causes the same damage as that in industrial pollution or that Color Your World knew of and was indifferent to this possibility.

Significantly, though, the court did not reject the trial judge’s findings that images can be defamatory. It agreed that the audiovisual aspects of a television broadcast (such as voice intonation, visual background, sequence of images, facial expressions and gestures) could change the impression that verbal statements might otherwise give. In determining whether a television show is defamatory, the court must look at the accuracy of the statements and the overall impression of the show.

However, the court did emphasize that the words are relevant and that, if the content of the words is not distorted by the images, the meaning of the program should be taken from the words.

The bottom line

Ultimately, in the Color Your World case, the combination of words, images and sequence was found to be not defamatory. And the test suggested by the Court of Appeal – whether the other elements of the show distort the meaning of the words – stresses the importance of what is actually stated.

But the courts have made it clear that you must be careful not just about what you say but also about how you say it.

The same elements you use to add dramatic effect to your production can color your words, and if they color them too much, the result could paint a very bleak picture for you.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)