Defamation: Libel and Slander: Difference between revisions

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{{REVIEWEDPLS | reviewer = [https://owenbird.com/lawyers/daniel-h-coles/ Daniel Coles], Owen Bird Law Corporation and [https://pacificlaw.ca/about-our-lawyers/christopher-v-morcom/ Christopher Morcom], Pacific Law Group|date= February 2022}} {{Dial-A-Law TOC|expanded = rights}}
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The law of defamation protects a person’s reputation from unjustified harm. Learn what kinds of communication are considered defamatory, as well as the defences to a defamation action.


==What is defamation?==
==Common questions==
Defamation is communication about a person that tends to hurt the person's reputation. It causes the reader or listener 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.
===What is defamation?===
'''Defamation''' is communication about a person that tends to hurt their reputation. It makes people who read or hear the communication think less of that person.


The law protects your reputation against defamation. If someone defames you, you can sue them for money (called ''damages'') for harming your reputation. You have to sue in Supreme Court, not Provincial Court, and you have to sue within 2 years of the defamation. This is the ''limitation period''. It starts when the defamatory statement was made or published—not when you discovered it. For more on the court system, check script [[Our Court System and Solving Disputes (Script 432)|432]], called “Our Court System and Solving Disputes”.
The communication must be made to other people, not just conveyed privately.


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 defamation is spoken, it’s called '''slander'''. If it’s written, it’s called '''libel'''.


If a person tells someone that you cheat in your business dealings, then you probably do have a good reason to sue, as long as he says it to someone else, not just to you.
The law protects you from defamation. If someone defames you, you can sue them for money (called damages) for harming your reputation.


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, you may also be able to sue for a violation of your privacy under the provincial ''Privacy Act''. Further, section 7 of the BC ''Human Rights Code'' prohibits another type of defamation, namely, 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. Or see its website at [http://www.bchrt.bc.ca www.bchrt.bc.ca]. Also, check script [[Human Rights and Discrimination Protection (Script 236)|236]], called “Human Rights and Discrimination Protection”.
===What kinds of communication can amount to defamation?===
To establish a defamation claim, you must show that the communication meets three requirements. You have to show that:
* the communication was '''defamatory''' (that it would tend to lower your reputation in the eyes of a reasonable person),
* it referred to '''you''', and
* it was communicated to '''at least one other person'''.


==What is libel?==
Personal insults that only injure your pride normally don’t satisfy this test. But if someone spreads rumours accusing you of a crime, for example, you’d have a much stronger claim that this harms your reputation.
Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If you can prove that someone libeled you, and that person does not have a good defence (see the section on defences below), then a court will presume that you suffered damages and award you money to pay for your damaged reputation. But going to Supreme Court is expensive and even if you win, you may not get as much as it costs you to sue. In deciding on damages, the Court will consider your position in the community. For example, if you are a professional, damages may be higher.


==What is slander?==
===What kinds of damages might be awarded in a defamation lawsuit?===
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 have to prove you suffered damages, in the form of financial loss, to get compensation. But with libel, the law presumes you suffered damages. For example, say that Bill told John you were a cheat, and then John refused to do business with you because of that. You sue Bill and prove that you lost business with John because of what Bill said. Bill would have to pay you for the loss of John's business, but not for the general damage to your reputation. It can be very hard to prove this sort of financial loss. That's why most slander cases never go to court.
If the person bringing a defamation lawsuit (the “plaintiff”) can prove they were defamed, and the defendant doesn’t have a defence to the claim, a court may award '''damages''' for loss of reputation. These are often called '''general damages'''.


But in the following four examples, a slander lawsuit may succeed without your proving financial loss. Even though there's no permanent record of the slander, the law will presume damages, as if it were libel, if someone:
Awards for general damages vary widely, from a few thousand dollars to tens of thousands of dollars. They depend on several factors, including:
*accuses you of a crime (unless they made the accusation to the police).
*accuses you of having a contagious disease.
*makes negative remarks about you in your work, profession, trade, or business.
*accuses you of adultery.
==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 other rights more important. The law allows the following defences for 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
===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, on the balance of probability, that their statement is true.
 
===#Absolute privilege===


People must be able to speak freely in our justice and political systems without worrying that someone may sue them. The 3 main examples of this defence are statements made:
* the plaintiff’s position and standing in the community,
•in Parliament.
* the nature and seriousness of the defamation,
•as evidence at a trial or in court documents, in a criminal or civil case.
* the mode and extent of publication,
•to a quasi-judicial body, such as a regulatory professional association like the law society, that is investigating a complaint.
* the absence or refusal of any retraction or apology, and
* the conduct of the defendant from the time of the defamatory statements to judgment.
This privilege does not apply if a person repeats their statement outside of Parliament or the court or regulatory process. It also does not apply if a person tells someone they made a discipline complaint.


This defence also allows the fair and accurate reporting of court proceedings in the media, such as newspaper reports of a trial.
How widely the remarks were shared is an especially important factor in assessing damages in internet defamation cases.


3.     Qualified privilege
The plaintiff may also be entitled to '''special damages''', such as lost earnings, but only if they can prove that the lost earnings resulted from the defamatory statement, and not from other factors.


This defence is where remarks that may otherwise be defamatory were conveyed to a third party non-maliciously and for an honest and well-motivated reason.  Say a former employee of yours gave your name to an employer as a reference and that employer calls you for a reference. You say, "Well, frankly, I found that this employee caused morale problems." As long as you act in good faith and without malice, and your statement is not made to more people than necessary, then the defence of qualified privilege protects you if the former employee sues you for defamation. You gave your honest opinion and the caller had a legitimate interest in hearing it.
If someone makes defamatory statements with malice, the plaintiff may also be entitled to '''aggravated''' or even '''punitive damages'''.


4.     Fair comment
For more on how damages work, see our [https://www.peopleslawschool.ca/defamation/ in-depth guidance on defamation].


We all are free to comment—even harshly—about issues of public interest, as long as we are clear that our comments are:
===What’s involved in suing someone for defamation?===
•statements of opinion, not fact.
In BC, you must bring a defamation lawsuit in BC Supreme Court, not Provincial Court. It must be brought within two years of the defamation. This window of time is the '''limitation period'''. The clock begins when the defamatory statement was made or published. To start the lawsuit, you must file documents in court and deliver them to (“serve” them on) the other party. For details, see our information on [https://dialalaw.peopleslawschool.ca/starting-a-lawsuit/ starting a lawsuit].
•based on facts that can be proven.
•not made maliciously.
   
   
For example, a newspaper columnist may write that a Member of Parliament (an 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.
{| class="wikitable"
 
|align="left"|'''Consider alternatives to going to court'''
5.    Responsible communication on matters of public interest
Going to BC Supreme Court is expensive. Even if you win, you may spend more on legal fees than you get in damages. A court can award costs to the winner of a lawsuit, but costs cover only a small portion of your full legal costs. If possible, it’s best to resolve the dispute outside of court. See our guidance on [https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/ alternatives to going to court].
|}


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:
===What if someone accuses me of defamation?===
•the news was urgent, serious, and of public importance, and
To establish a defamation claim, the person accusing you must show that:
•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.


What effect does an apology have?
* the communication was '''defamatory''' (that it would tend to lower their reputation in the eyes of a reasonable person),
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.
* it referred to '''them''', and
* it was communicated to '''at least one other person'''.


Summary
If your accuser proves these three elements, the onus shifts to you to put up a defence. The following six defences are available to you:
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.


* '''Truth''', also known as justification, if the defamatory statement is substantially true and you can prove it.
* '''Absolute privilege''', if the statement is made in certain proceedings (like a lawsuit).
* '''Qualified privilege''', if the statement is made in performing a public or private duty.
* '''Fair comment''', if it’s a statement of opinion, based on stated and true facts, on a matter of public interest.
* '''Responsible communication on matters of public interest''', if the statement concerns a matter of public interest and was made responsibly. This includes being diligent in trying to verify the statement and seeking the other party’s side of the story before circulating it.
* '''Innocent dissemination''', if the person distributed the defamatory statement unknowingly, and wasn't negligent in not knowing. And they must have immediately removed the statement on learning of the defamation.


[updated March 2014]
For more on each of these defences, see our guidance on [https://www.peopleslawschool.ca/accused-of-defamation/ if you’ve been accused of defamation].


===What is the effect of an apology?===
One factor a judge will look at in deciding on a damages award for defamation is whether the person accused later retracted their statements or offered an apology. If they can show they made an effort to walk back their remarks, it’s likely they’ll pay less in damages if the matter goes to court.


----
But an apology or retraction doesn’t prevent someone from suing for defamation. It just limits the damages.
----


===Explore further===
{| class="wikitable"
|align="left"|'''More questions & answers'''
At [https://www.peopleslawschool.ca/webinar/defamation-in-bc/ a webinar] in March 2022, lawyer Daniel Coles answered common questions about defamation, including what it is and what you can do about it.
|}
==Who can help==
===Legal advice===
:Lawyer Referral Service
:Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
:Call 1-800-663-1919
:[https://www.accessprobono.ca/our-programs/lawyer-referral-service Visit website]


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Latest revision as of 22:54, 7 November 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Daniel Coles, Owen Bird Law Corporation and Christopher Morcom, Pacific Law Group in February 2022.
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The law of defamation protects a person’s reputation from unjustified harm. Learn what kinds of communication are considered defamatory, as well as the defences to a defamation action.

Common questions

What is defamation?

Defamation is communication about a person that tends to hurt their reputation. It makes people who read or hear the communication think less of that person.

The communication must be made to other people, not just conveyed privately.

If defamation is spoken, it’s called slander. If it’s written, it’s called libel.

The law protects you from defamation. If someone defames you, you can sue them for money (called damages) for harming your reputation.

What kinds of communication can amount to defamation?

To establish a defamation claim, you must show that the communication meets three requirements. You have to show that:

  • the communication was defamatory (that it would tend to lower your reputation in the eyes of a reasonable person),
  • it referred to you, and
  • it was communicated to at least one other person.

Personal insults that only injure your pride normally don’t satisfy this test. But if someone spreads rumours accusing you of a crime, for example, you’d have a much stronger claim that this harms your reputation.

What kinds of damages might be awarded in a defamation lawsuit?

If the person bringing a defamation lawsuit (the “plaintiff”) can prove they were defamed, and the defendant doesn’t have a defence to the claim, a court may award damages for loss of reputation. These are often called general damages.

Awards for general damages vary widely, from a few thousand dollars to tens of thousands of dollars. They depend on several factors, including:

  • the plaintiff’s position and standing in the community,
  • the nature and seriousness of the defamation,
  • the mode and extent of publication,
  • the absence or refusal of any retraction or apology, and
  • the conduct of the defendant from the time of the defamatory statements to judgment.

How widely the remarks were shared is an especially important factor in assessing damages in internet defamation cases.

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

If someone makes defamatory statements with malice, the plaintiff may also be entitled to aggravated or even punitive damages.

For more on how damages work, see our in-depth guidance on defamation.

What’s involved in suing someone for defamation?

In BC, you must bring a defamation lawsuit in BC Supreme Court, not Provincial Court. It must be brought within two years of the defamation. This window of time is the limitation period. The clock begins when the defamatory statement was made or published. To start the lawsuit, you must file documents in court and deliver them to (“serve” them on) the other party. For details, see our information on starting a lawsuit.

Consider alternatives to going to court

Going to BC Supreme Court is expensive. Even if you win, you may spend more on legal fees than you get in damages. A court can award costs to the winner of a lawsuit, but costs cover only a small portion of your full legal costs. If possible, it’s best to resolve the dispute outside of court. See our guidance on alternatives to going to court.

What if someone accuses me of defamation?

To establish a defamation claim, the person accusing you must show that:

  • the communication was defamatory (that it would tend to lower their reputation in the eyes of a reasonable person),
  • it referred to them, and
  • it was communicated to at least one other person.

If your accuser proves these three elements, the onus shifts to you to put up a defence. The following six defences are available to you:

  • Truth, also known as justification, if the defamatory statement is substantially true and you can prove it.
  • Absolute privilege, if the statement is made in certain proceedings (like a lawsuit).
  • Qualified privilege, if the statement is made in performing a public or private duty.
  • Fair comment, if it’s a statement of opinion, based on stated and true facts, on a matter of public interest.
  • Responsible communication on matters of public interest, if the statement concerns a matter of public interest and was made responsibly. This includes being diligent in trying to verify the statement and seeking the other party’s side of the story before circulating it.
  • Innocent dissemination, if the person distributed the defamatory statement unknowingly, and wasn't negligent in not knowing. And they must have immediately removed the statement on learning of the defamation.

For more on each of these defences, see our guidance on if you’ve been accused of defamation.

What is the effect of an apology?

One factor a judge will look at in deciding on a damages award for defamation is whether the person accused later retracted their statements or offered an apology. If they can show they made an effort to walk back their remarks, it’s likely they’ll pay less in damages if the matter goes to court.

But an apology or retraction doesn’t prevent someone from suing for defamation. It just limits the damages.

Explore further

More questions & answers

At a webinar in March 2022, lawyer Daniel Coles answered common questions about defamation, including what it is and what you can do about it.

Who can help

Legal advice

Lawyer Referral Service
Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
Call 1-800-663-1919
Visit website
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