The purpose of this article is to provide an introduction and overview of the law of defamation. We will explore defamation in more detail in future articles.
Historically, defamation was characterized as either slander, meaning “spoken defamation” or libel, meaning “written defamation”. In order to successfully sue someone for slander, the person, whose reputation was damaged, must usually be able to prove the actual damage suffered, for example, the slander caused the plaintiff to lose his job. However, if the slander gives the recipients the impression that a trade, profession, or business was dishonest, or incompetent, the victim of that type of slander does not have to prove damages. Similarly, in the case of libel, the plaintiff does not have to prove specific damages – it is always presumed if the statement gives recipients that impression.
The plaintiff must prove things 3 things in order to be awarded damages:
- The communication referred to the plaintiff;
- What was communicated would make other “reasonable” people think less of the plaintiff;
- The communication was communicated to at least one person other than the plaintiff.
If someone is being sued for alleged defamation, there are the following defences:
- Truth: If the expressions are true, they are not defamatory.
- Fair Comment: Expressions that are allegedly defamatory may be protected if they are a reasonable statement of opinion and not a statement of fact.
- Absolute privilege: Statements made in parliament, at trial, or in court documents are not defamatory.
- Qualified privilege: Statements made without malice and for a reason that is honest and well-intentioned are also protected.
An extremely important right that we have in Canada, is freedom of expression which is protected by the Canadian Charter of Rights and Freedoms, one of our “Fundamental Freedoms”. Not only is our freedom of expression protected under the Canadian Charter of Rights and Freedoms, in Ontario, the Courts of Justice Act provides a so-called anti-SLAPP provision (SLAPP stands for “Strategic Lawsuits Against Public Participation”), included as additional protection of freedom of expression concerning defamation lawsuits relating to matters of genuine public interest. The specific purposes of sections 137.1 to 137.5 of the Courts of Justice Act are to:
(a) encourage people to express themselves on matters of public interest;
(b) encourage wide participation in debates on matters of public interest;
(c) discourage the use of litigation as a way of overly limiting expression on matters of public interest; and
(d) reduce the risk that people will hesitate to take part in debates on matters of public interest because they are afraid of being sued for defamation. In this section, “expression” means any communication – it does not matter if it is a verbal or non-verbal expression. “Expression” also means communications that are made both publicly and privately as well as communications that are directed at a person or at an entity.
This section provides a great deal of protection enabling a person being sued for defamation to apply to the Court and have the legal action dismissed if that person can convince the Court that the alleged defamatory expression relates to a matter of public interest. However, the Court will not dismiss the defamation action if the plaintiff can establish that there are reasons to believe that:
- the defamation action has substantial merit;
- the person who made the expression does not have a valid defence; and,
- the harm that the plaintiff suffered, or is likely to suffer, is serious enough that the public interest in allowing the plaintiff’s defamation claim to continue outweighs the public interest in protecting the expression.
The Courts of Justice Act provides a way for defendants of SLAPP lawsuits to have the case dismissed in a less expensive and comparatively convenient way rather than proceeding through trial.
However, even though there is substantial legal protection for our freedom of expression, there are limits on how “freely” we can express ourselves. One person’s rights end where the next person’s rights begin. This is especially true when applied to freedom of expression. In terms of expressing ourselves, it means that there are limits on our freedom of expression as the foregoing indicates. In fact, certain kinds of free expression are actually illegal, such as: hate speech, lying while under oath or affirmation, and handing out obscene material.
In addition to limitations under criminal law, there are also limitations under civil law. People and businesses have the right to their good reputation and there are situations where damaging the “good reputation” of another person (or a business) could result in a lawsuit. Defamation, is the communication of a statement (it could be spoken, written, drawn, etc.) that is not true and which causes others to think less of the person being referred to.
The law concerning defamation is complicated as it involves two conflicting fundamental rights. Every case involves balancing one’s right to freedom of expression against another’s right to a “good reputation.” This matter becomes much more complicated when the alleged defamatory expressions are posted online, but that is a topic for a future article.