Difference between revisions of "Defamation: Libel and Slander"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://www.ahbl.ca/people/lawyers/karen-zimmer/?hilite=%27karen%27 Karen Zimmer], Alexander Holburn Beaudin + Lang LLP|date= February 2018}} {{Dial-A-Law TOC|expanded = rights}}
The law of defamation protects a person’s reputation from harm that is unjustified. Learn what kinds of communication are considered defamatory, as well as the defences to a defamation action.


{{Dial-A-Law TOC|expanded = rights}}
==What you should know==
==What is defamation?==
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.


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. 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 law of defamation protects a person’s reputation===
A good reputation is core to a person’s sense of self-worth and dignity. Once harmed, a good reputation is hard to regain, with sometimes devastating consequences, especially professionally. The law of '''defamation''' protects a person’s reputation from harm that is unjustified.


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.
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.


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.
However, protecting someone’s reputation can restrict other rights, such as the guarantee of freedom of expression under the ''Charter of Rights and Freedoms''.


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 ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96373_01 Privacy Act]''. Further, [http://www.bclaws.ca/civix/document/id/complete/statreg/96210_01#section7 section 7] of the BC ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96210_01 Human Rights Code]'' prohibits another type of defamation, namely, a discriminatory publication. For more information on that, contact the [http://www.bchrt.bc.ca/ BC Human Rights Tribunal] at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. Also, check script [[Human Rights and Discrimination Protection (Script 236)|236]], called “Human Rights and Discrimination Protection”.
The law tries to balance these competing rights. Sometimes, even though someone makes a defamatory statement that harms a person's reputation, the law considers freedom of expression more important.


==What is libel?==
Defamation can also be a crime under the [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec298_smooth ''Criminal Code''], but this is rarely prosecuted. This information is about civil, not criminal, defamation.
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?==
===If someone defames you===
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 someone defames you, you can sue them for money (called '''damages''') for harming your reputation.


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:
To show that someone defamed you, you must show that:
*accuses you of a crime (unless they made the accusation to the police).
 
*accuses you of having a contagious disease.
* the communication was '''defamatory''' (that it would tend to lower your reputation in the eyes of a reasonable person),
*makes negative remarks about you in your work, profession, trade, or business.
* it referred to ''you'', and
*accuses you of adultery.
* it was communicated by the defendant to ''at least one other person''.
 
The law doesn't protect you from a personal insult or a remark that injures only your pride. It protects your reputation, not your feelings. If someone in a public meeting calls you a nasty word, your feelings might be hurt, but you would have a difficult time showing the communication lowered your reputation in the minds of others.
 
If someone tells others you cheat in your business dealings, then you would have a much stronger claim that this harms your reputation and is defamatory.
 
You are not required to show the defendant ''intended'' to do harm, or even that the defendant was careless. If you prove the required elements, the onus then shifts to the defendant to put forward a '''defence''' in order to escape liability.
   
   
==What about the right to free speech?==
{| class="wikitable"
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.
|align="left"|'''Tip'''
If someone publishes a statement that violates your reasonable expectation of privacy, they may have breached your '''privacy rights''' under the BC [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-373/latest/rsbc-1996-c-373.html ''Privacy Act'']
 
If someone publishes a statement that discriminates against you or is likely to expose you to hatred, they may have violated your '''human rights'''. See our information on [[Human Rights and Discrimination Protection|human rights and discrimination protection]].
|}
 
===Defamation can take different forms===
If defamation is written or otherwise recorded, it is called '''libel'''. Libel is defamation that leaves a permanent record. Examples would be statements on social media or other online platforms, in newspapers, letters, or emails, or on radio or TV broadcasts. Libel can also be a picture.
 
If the defamation leaves no permanent record, it is called '''slander'''. Mostly this involves spoken statements. It can also be a hand gesture or something similar.
 
The law treats slander differently from libel. With slander, you have to show you suffered a '''financial loss''' to get compensation, unless the communication:
 
* accuses you of a crime and is to someone other than 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
 
If the words spoken don’t do any of these things, then you would have to show the words caused you a financial loss to establish slander.
 
===Defences to a claim of defamation===  
The law protects a person's reputation, but this protection can clash with ''other'' rights, such as the right to free expression. The law tries to balance these competing rights. Sometimes, even though someone makes a defamatory statement that harms a person's reputation, the law considers freedom of expression to be more worthy of protection.
 
The following are defences to an action for defamation.
 
====Truth or justification====
A statement may hurt your reputation, but if the statement is true, that is a complete defence to an action for defamation. The person who made the statement can defend their statement by proving it is more likely true than not.
 
====Absolute privilege====
Freedom of speech without fear of consequences is considered critical for the effective administration of justice. A statement made in judicial proceedings is protected by a defence of '''absolute privilege'''. This is a complete and unqualified defence to an action for defamation.
 
This defence protects defamatory statements made in a civil lawsuit. It covers statements made in court, as well as all preparatory steps, including court filings and examinations for discovery.


==What are the defences to a defamation lawsuit?==
Absolute privilege also protects defamatory statements made in all stages of a criminal case. For example, a complaint to the police is protected by absolute privilege — as long as the complaint is not repeated to others.
If someone sues for defamation, the most common defences are:
 
*truth (known in law as "justification")
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 of BC.
*absolute privilege
 
*qualified privilege
And absolute privilege protects statements in Parliament.
*fair comment
 
*responsible communication on matters of public interest
But absolute privilege does not protect a person who repeats their statement outside of the court or judicial process.
 
===1. Truth or justification===
====Qualified privilege====
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.
A defamatory statement made in performing a public or private duty can be protected by '''qualified privilege'''. The protection only applies to statements made to people with a corresponding interest in receiving the statement.
 
An example of qualified privilege is when a previous employer provides a bad reference to a potential employer. If the previous employer honestly believes what they are saying in providing the bad reference, then qualified privilege may protect them in giving the bad reference.
 
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 defence applies even when very strong language is used, or the statement is false.
 
It is hard to rely on this defence for statements made on the internet because the defence protects a person only if they limit their defamatory statements to people who have an interest in hearing the communication. Defamatory statements on the internet are not limited this way. Instead, they go to the public at large. So they do not meet this test unless it is a matter the public would be interested in, or the communication is on a members-only site or service and not open to the public.
 
====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, and
* not made maliciously.


===2. Absolute privilege===
For example, a newspaper columnist may write about a politician who says they support equality and equal rights, but are opposed to same-sex marriages. The columnist may write that the politician is hypocritical. If the politician sues the columnist for defamation, the columnist may put forward the defence of fair comment.


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:
====Responsible communication on matters of public interest====
*in Parliament.
A more recent defence to libel claims deals with reporting on matters of public interest. 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:
*as evidence at a trial or in court documents, in a criminal or civil case.
*to a quasi-judicial body, such as a regulatory professional association like the law society, that is investigating a complaint.
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.
* 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.


===3. Qualified privilege===
The courts have defined the term “journalist” widely to include bloggers and others publishing material of public interest in any medium.
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.


===4. Fair comment===
====Innocent dissemination====
We all are free to comment—even harshly—about issues of public interest, as long as we are clear that our comments are:
The defence 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 defence of innocent dissemination if they:
*statements of opinion, not fact.
*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.


===5. Responsible communication on matters of public interest===
* did not know they were distributing a defamatory statement, and
* were not negligent in not knowing, and
* immediately removed the statement from their website or from distribution when they learned of the defamatory statement.


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:
==Common questions==
*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''.


==What effect does an apology have?==
===What’s involved in suing someone for defamation?===
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.
A defamation lawsuit in British Columbia must be brought in 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 starts running 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|starting a lawsuit]].


==Summary==
{| class="wikitable"
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.
|align="left"|'''Tip'''
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. For alternatives to bringing a lawsuit, see our information on [[Resolving Disputes Without Going to Court|resolving disputes without going to court]].
|}
===What kinds of damages might be awarded in a defamation lawsuit?===
If the person bringing a defamation lawsuit (the “plaintiff”) can prove that someone defamed them, and the defendant does not have a defence to the claim, then a court may award '''general damages''' for loss of reputation. General damages can range from small to large amounts. It depends 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.


[updated February 2016]
The mode and extent of publication is a particularly significant consideration 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'''.
----


===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 someone from suing for defamation. It just limits the damages.


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Revision as of 05:18, 9 November 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Karen Zimmer, Alexander Holburn Beaudin + Lang LLP in February 2018.

The law of defamation protects a person’s reputation from harm that is unjustified. Learn what kinds of communication are considered defamatory, as well as the defences to a defamation action.

What you should know

The law of defamation protects a person’s reputation

A good reputation is core to a person’s sense of self-worth and dignity. Once harmed, a good reputation is hard to regain, with sometimes devastating consequences, especially professionally. The law of defamation protects a person’s reputation from harm that is unjustified.

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.

However, protecting someone’s reputation can restrict other rights, such as the guarantee of freedom of expression under the Charter of Rights and Freedoms.

The law tries to balance these competing rights. Sometimes, even though someone makes a defamatory statement that harms a person's reputation, the law considers freedom of expression more important.

Defamation can also be a crime under the Criminal Code, but this is rarely prosecuted. This information is about civil, not criminal, defamation.

If someone defames you

If someone defames you, you can sue them for money (called damages) for harming your reputation.

To show that someone defamed you, you must 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 by the defendant to at least one other person.

The law doesn't protect you from a personal insult or a remark that injures only your pride. It protects your reputation, not your feelings. If someone in a public meeting calls you a nasty word, your feelings might be hurt, but you would have a difficult time showing the communication lowered your reputation in the minds of others.

If someone tells others you cheat in your business dealings, then you would have a much stronger claim that this harms your reputation and is defamatory.

You are not required to show the defendant intended to do harm, or even that the defendant was careless. If you prove the required elements, the onus then shifts to the defendant to put forward a defence in order to escape liability.

Tip

If someone publishes a statement that violates your reasonable expectation of privacy, they may have breached your privacy rights under the BC Privacy Act

If someone publishes a statement that discriminates against you or is likely to expose you to hatred, they may have violated your human rights. See our information on human rights and discrimination protection.

Defamation can take different forms

If defamation is written or otherwise recorded, it is called libel. Libel is defamation that leaves a permanent record. Examples would be statements on social media or other online platforms, in newspapers, letters, or emails, or on radio or TV broadcasts. Libel can also be a picture.

If the defamation leaves no permanent record, it is called slander. Mostly this involves spoken statements. It can also be a hand gesture or something similar.

The law treats slander differently from libel. With slander, you have to show you suffered a financial loss to get compensation, unless the communication:

  • accuses you of a crime and is to someone other than 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

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

Defences to a claim of defamation

The law protects a person's reputation, but this protection can clash with other rights, such as the right to free expression. The law tries to balance these competing rights. Sometimes, even though someone makes a defamatory statement that harms a person's reputation, the law considers freedom of expression to be more worthy of protection.

The following are defences to an action for defamation.

Truth or justification

A statement may hurt your reputation, but if the statement is true, that is a complete defence to an action for defamation. The person who made the statement can defend their statement by proving it is more likely true than not.

Absolute privilege

Freedom of speech without fear of consequences is considered critical for the effective administration of justice. A statement made in judicial proceedings is protected by a defence of absolute privilege. This is a complete and unqualified defence to an action for defamation.

This defence protects defamatory statements made in a civil lawsuit. It covers statements made in court, as well as all preparatory steps, including court filings and examinations for discovery.

Absolute privilege also protects defamatory statements made in all stages of a criminal case. For example, a complaint to the police is protected by absolute privilege — 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 of BC.

And absolute privilege protects statements in Parliament.

But absolute privilege does not protect a person who repeats their statement outside of the court or judicial process.

Qualified privilege

A defamatory statement made in performing a public or private duty can be protected by qualified privilege. The protection only applies to statements made to people with a corresponding interest in receiving the statement.

An example of qualified privilege is when a previous employer provides a bad reference to a potential employer. If the previous employer honestly believes what they are saying in providing the bad reference, then qualified privilege may protect them in giving the bad reference.

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 defence applies even when very strong language is used, or the statement is false.

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

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, and
  • not made maliciously.

For example, a newspaper columnist may write about a politician who says they support equality and equal rights, but are opposed to same-sex marriages. The columnist may write that the politician is hypocritical. If the politician sues the columnist for defamation, the columnist may put forward the defence of fair comment.

Responsible communication on matters of public interest

A more recent defence to libel claims deals with reporting on matters of public interest. 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 courts have defined the term “journalist” widely to include bloggers and others publishing material of public interest in any medium.

Innocent dissemination

The defence 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 defence of innocent dissemination if they:

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

Common questions

What’s involved in suing someone for defamation?

A defamation lawsuit in British Columbia must be brought in 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 starts running 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.

Tip

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. For alternatives to bringing a lawsuit, see our information on resolving disputes without going to court.

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

If the person bringing a defamation lawsuit (the “plaintiff”) can prove that someone defamed them, and the defendant does not have a defence to the claim, then a court may award general damages for loss of reputation. General damages can range from small to large amounts. It depends 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.

The mode and extent of publication is a particularly significant consideration 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.

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 someone from suing for defamation. It just limits the damages.

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