Difference between revisions of "Defamation: Libel and Slander"

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{{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}}
{{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}}
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.
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 you should know==
==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.


===The law of defamation protects a person’s reputation===
If defamation is spoken, it’s called '''slander'''. If it’s written, it’s called '''libel'''.
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.
The law protects you from defamation. If someone defames you, you can sue them for money (called damages) for harming your reputation.


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


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.
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.


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.
===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'''.


===If someone defames you===
Awards for general damages vary widely, from a few thousand dollars to tens of thousands of dollars. They depend on several factors, including:
If someone defames you, you can sue them for money (called '''damages''') for harming your reputation.
 
* 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.


To show that someone defamed you, you must show that:
How widely the remarks were shared is an especially important factor in assessing damages in internet defamation cases.


* the communication was '''defamatory''' (that it would tend to lower your reputation in the eyes of a reasonable person),
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.
* 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 makes defamatory statements with malice, the plaintiff may also be entitled to '''aggravated''' or even '''punitive damages'''.


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


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’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 [https://dialalaw.peopleslawschool.ca/starting-a-lawsuit/ starting a lawsuit].
   
   
{| class="wikitable"
{| class="wikitable"
|align="left"|'''Tip'''
|align="left"|'''Consider alternatives to going to court'''
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'']
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].
 
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===  
===What if someone accuses me of defamation?===
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.
To establish a defamation claim, the person accusing you must show that:


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 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'''.


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


* accuses you of a crime and is to someone other than the police
* '''Truth''', also known as justification, if the defamatory statement is substantially true and you can prove it.
* accuses you of having a contagious disease
* '''Absolute privilege''', if the statement is made in certain proceedings (like a lawsuit).
* makes negative remarks about you in your work, profession, trade, or business
* '''Qualified privilege''', if the statement is made in performing a public or private duty.
* accuses you of adultery
* '''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.


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.
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].


===Defences to a claim of defamation===
===What is the effect of an apology?===
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.
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.
 
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==
But an apology or retraction doesn’t prevent someone from suing for defamation. It just limits the damages.
 
===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|starting a lawsuit]].


==Explore further==
{| class="wikitable"
{| class="wikitable"
|align="left"|'''Tip'''
|align="left"|'''More questions & answers'''
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]].
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.
|}
|}
   
   
===What kinds of damages might be awarded in a defamation lawsuit?===
==Who can help==
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:
===Legal advice===
 
:Lawyer Referral Service
* the plaintiff’s position and standing in the community,
:Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
* the nature and seriousness of the defamation,
:Call 1-800-663-1919
* the mode and extent of publication,
:[https://www.accessprobono.ca/our-programs/lawyer-referral-service Visit website]
* 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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Revision as of 23:39, 2 October 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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