Defamation: Libel and Slander (Script 240)

From Clicklaw Wikibooks

What is defamation?

Defamation is communication about a person that tends to hurt their reputation. It causes people who read or hear the communication to think less of the person. The communication must be made to other people, not just to the person it's about. If defamation is spoken, then it is called slander. If it is written, it is called libel. It can also be a gesture, which is a type of slander.

The law protects your reputation against defamation. If someone defames you, you can sue them for money (called damages) for harming your reputation. You must sue in supreme court, not provincial court, and you must sue within 2 years of the defamation. This is the limitation period. It starts when the defamatory statement was made or published. For more on the court system, check script 432, called “Our Court System and Solving Disputes.”

The law doesn't protect you from a personal insult or a remark that injures only your pride. It protects reputation, not feelings. So if someone calls you a lazy slob, you might be hurt, but you would not have a defamation complaint unless the statement was made to another person.

If a person tells someone that you cheat in your business dealings, then you probably have a good reason to sue the person, as long as they say it to someone else, not just to you.

Defamation can be a crime under the Criminal Code, but only rarely. This script is about civil, not criminal, defamation.

If someone has defamed you, and the publication also violates your reasonable expectation of privacy, you may also be able to sue for breach of privacy under the BC Privacy Act.

Further, section 7 of the BC Human Rights Code prohibits another type of defamation, called a discriminatory publication. For more information on that, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. Also, check script 236, called “Human Rights and Discrimination Protection.”

What is libel?

Libel is the type of defamation with a permanent record, like social media and other online posts, newspapers, letters, emails, pictures, and radio and TV broadcasts.

If you can prove that someone libeled you, and that person does not have a good defence (defences are described later) then a court may award you general damages for loss of reputation. General damages can range from small to large amounts. It depends on several factors including how serious the allegation against you is, the credibility of your accuser (how believable they are), how broadly the words were published, and your position in the community. For example, if you are a professional, general damages may be higher.

You may also be entitled to special damages, such as lost earnings, but only if you can prove that the lost earnings resulted from the defamatory statement, and not from other factors.

If someone publishes with malice, you may be also entitled to aggravated or even punitive damages.

But going to Supreme Court is expensive and even if you win, you may spend more on legal fees than you get in damages. The court will not award you your full legal costs, even if you win.

What is slander?

Slander is the type of defamation with no permanent record. Normally it's a spoken statement. It can also be a hand gesture or something similar. The law treats slander differently from libel: with slander, you may have to prove you suffered damages, in the form of financial loss, to get compensation.

You can sue for slander without proving you had an actual financial loss only if the words spoken do one of the following things:

  • accuse you of a crime (unless the accusation is made to the police)
  • accuse you of having a contagious disease
  • make negative remarks about you in your work, profession, trade, or business
  • accuse you of adultery

If the words spoken don’t accuse you of any of these things, then you would have to show that the words caused you a financial loss.

What about the right to free speech?

The law protects a person's reputation but this protection can restrict other rights, such as the right to free speech. The law tries to balance these competing rights. Sometimes, even though someone made a defamatory statement that hurt a person's reputation, the law considers freedom of speech and expression more important. The next section explains the common defences available to a person who makes a defamatory statement.

What are the defences to a defamation lawsuit?

If someone sues for defamation, the most common defences are:

  • truth (known in law as justification)
  • absolute privilege
  • qualified privilege
  • fair comment
  • responsible communication on matters of public interest
  • innocent dissemination

1. Truth or justification

A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence if you sue them for defamation. They just have to prove that their statement is more likely true than not.

2. Absolute privilege

People must be able to speak freely in our judicial and quasi-judicial systems, without worrying that someone may sue them. So the law recognizes a complete and unqualified defense of absolute privilege. This defense allows people to make false and defamatory statements in criminal, quasi-judicial, and judicial proceedings, and in parliament.

This defense also protects a person who makes defamatory statements in a civil lawsuit, such as in a notice of civil claim or defense, at an examination for discovery, or in court. And this defense protects a person who has made defamatory statements in a criminal case. For example, you cannot sue for defamation based on a complaint to the police—as long as the complaint is not repeated to others.

Absolute privilege also protects a person who makes a defamatory statement in a quasi-judicial proceeding, like a hearing before a professional regulatory body such as the law society.

But absolute privilege does not protect a person who repeats their statement outside of court or the criminal or regulatory processes.

3. Qualified privilege

Qualified privilege allows a person to make defamatory statements about another person without liability. Qualified privilege arises when a person makes a defamatory statement in performing a public or private duty, and they make the statement only to people with a corresponding interest in receiving it.

The duty can be legal, social, or moral. The test is whether a person of ordinary intelligence would think a duty existed to communicate the information to the audience it was made to.

There are no exact rules on when qualified privilege arises. It depends on the facts of a case. If the communication is made under qualified privilege, the defense applies even when very strong language is used, or the statement is false.

It is hard to rely on this defense for statements made on the internet because the defense protects a person only if they limit their defamatory statements to people who have an interest in hearing it. Defamatory statements on the internet are not limited this way. Instead, they go to the public. So they do not meet this test unless it is a matter that the public would be interested in or the internet publication is on a members-only site, not open to the public.

An example of qualified privilege is when a previous employer provides a bad reference to a potential employer. If the previous employer honestly believed in the bad reference, then qualified privilege may protect them in giving the bad reference.

4. Fair comment

We all are free to comment—even harshly—about issues of public interest, as long as we are clear that our comments are:

  • expressed in a way that shows they are opinion, not fact.
  • based on facts that can be proven and those facts are either stated or otherwise known to readers or listeners.
  • not made maliciously.

For example, a newspaper columnist may write that a Member of Parliament (MP) says he supports equality and equal rights, but he opposes same-sex marriages. The columnist writes that the MP is hypocritical. If the MP sues the columnist for defamation, the columnist may have the defence of fair comment.

5. Responsible communication on matters of public interest

In a December 2009 case, the Supreme Court of Canada established this new defence to a libel claim. The court said that journalists should be able to report statements and allegations—even if not true—if there’s a public interest in distributing the information to a wide audience. This defence, which looks at the whole context of a situation, can apply if:

  • the news was urgent, serious, and of public importance, and
  • the journalist used reliable sources, and tried to get and report the other side of the story.

The court defined journalist widely to include bloggers and anyone else publishing material of public interest in any medium.

6. Innocent dissemination

The defense of innocent dissemination is important in the internet era. Generally, a person who takes part in publishing a defamatory statement is responsible for its publication. This includes a writer, editor, printer, and distributor. But a person who acts only as a distributor may be able to rely on the defense of innocent dissemination if they:

  • did not know that they were distributing a defamatory statement
  • were not negligent in not knowing, and immediately removed it from their website or from distribution when they learned of the defamatory statement.

What is the effect of an apology?

A newspaper or a TV or radio station that publishes or broadcasts a libel can limit the amount of the damages they may have to pay by publishing or broadcasting an apology right away. But an apology or retraction does not prevent the libeled party from suing.

Summary

The law of defamation protects your reputation against false statements. If a person makes a false statement to someone and it hurts your reputation, you can sue the person who made the false statement for damages. But because of other competing rights in our society, such as free speech and fair comment, you will not always win.


[updated February 2018]

The above was last reviewed for accuracy by Karen Zimmer and edited by John Blois.




© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.


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