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Defamation, Slander and Libel

Aswani K. Datt has litigation experience in defamation and related media matters.

The major points of defamation law in Canada are as follows:

  • Defamation is a “strict liability” tort. In other words, it does not matter if the defamation was intentional or the result of negligence. Defamatory material is presumed to be false and malicious. “Whatever a man publishes”, according to one case, “he publishes at his peril.”
  • Defamation must be a direct attack on an actual reputation, not an alleged reputation that a “victim” believes they deserve. A judge will assess the statement against the evidence of the victim’s reputation in their community.
  • The remarks must be harmful (i.e. “defamatory”) and this will be assessed on a case-by-case basis. Some statements are clearly defamatory. Other statements would only be defamatory to the person targeted by the remarks. What may be a nonsensical or mildly offensive remark to one person may constitute serious defamation to another. The judge will consider the situation of the person defamed in assessing the claim of defamation.
  • The defamatory remark must be clearly aimed at the plaintiff. General, inflammatory remarks aimed at a large audience would not qualify as the remarks must be clearly pointed at a specific person.
  • The defamatory remarks must be somehow conveyed to a third party. Private defamation just between two parties causes no reputation damage to reputation because there are no other persons to be impacted by the remarks. With libel, the damage is presumed as it is published. With slander (verbal defamation), proof of repetition to other people is essential to the claim; damages have to be proven (there are four exceptions: the defamation imputes the commission of a crime, the unchaste status of a woman, a “loathsome disease”, or a professional incompetence).

There are a number of special defenses available against defamation:

  • The “defamatory” remark was basically accurate.
  • The plaintiff agreed with the defamatory remarks. For example, if the plaintiff subsequently publishes the remarks, they would be hard pressed to succeed in a defamation claim.
  • Some special privileges exist for remarks made in certain venues such as in a court room during trial or in a legislative assembly or one of its committees. A privilege against defamation claims also exists for judicial or legislative reports.
  • There is what is known as a “qualified privilege” where remarks that may otherwise be construed as being “defamatory”, were conveyed to a third party non-maliciously and for an honest and well-motivated reason. An example would be giving a negative but honest job reference. The criteria for this defence are: defamation was incidental to the protection of an interest or discharge of a duty and the remarks were given to a person who had an interest in receiving the information. In assessing this defence, judges will ask themselves whether a reasonably intelligent person would have given the information to the person to whom it was conveyed.
  • Citizens are entitled to make “fair comment” on matters of public interest without fear of defamation claims. A good example of this is a letter to the editor on a matter of public concern. The author of the remarks may even go so far as to presume motives on the part of the person who’s actions are being criticized provided only that the imputation of motives is reasonable under the circumstances. The rule of thumb is that the fair comment must reflect an honestly held opinion based on proven fact and not motivated by malice. It should be noted, however, that some provinces have enacted laws which give their citizens varying rights to “fair comment.”

 

Libel

“defamatory words in a newspaper or in a broadcast shall be deemed to be published and to constitute libel”. Given the nature of editorial and opinion pieces, many defamation actions for libel are focused on newspaper articles which are alleged to have disparaged, directly or indirectly, the subject of the article. In short, libel refers to written defamatory statements.

Slander

Slander is the second subcategory of defamation, and encompasses the broadcasting of spoken defamatory words. At common law, oral statements relating to the following four categories of slanderous words are automatically considered to have proven that a loss has been sustained:

    a) statements that discredit the plaintiff in relation to his or her work (business, profession, etc.)
    b) statements that impute to the plaintiff the commission of a criminal offence; and
    c) statements that impute to the plaintiff a “loathsome or contagious disease”.

Aswani K. Datt can help you devise a litigation strategy to ensure you receive a real and cost effective result.

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