Difference between revisions of "Defamation: Libel and Slander"

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{{Dial-A-Law TOC|expanded = rights}}
{{Dial-A-Law TOC|expanded = rights}}
==What is defamation?==
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.
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 [[Our Court System and Solving Disputes (Script 432)|432]], called “Our Court System and Solving Disputes.”
==Understand your legal rights==


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.
===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.


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 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.  


Defamation can be a crime under the ''Criminal Code'', but only rarely. This script is about civil, not criminal, defamation.
However, protecting someone’s reputation can restrict other rights, such as the guarantee of freedom of expression under the ''Charter of Rights and Freedoms''.


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 ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96373_01 Privacy Act]''.
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.  


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, called 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.
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 is libel?==
===If someone defames you===
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 someone defames you, you can sue them for money (called '''damages''') for harming your reputation.  


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.  
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'''.


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.
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 publishes with malice, you may be also 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.  


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.
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.
{| class="wikitable"
|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 ''[http://canlii.ca/t/849p Privacy Act[''.


==What is slander?==
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 (Script 236)|human rights and discrimination protection (no. 236)]].
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.
|}
 
===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.


You can sue for slander without proving you had an actual financial loss only if the words spoken do one of the following things:
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.
*accuse you of a crime (unless the accusation is made to the police)
*accuse you of having a contagious disease
The law treats slander differently from libel. With slander, you have to show you suffered a '''financial loss''' to get compensation, unless the communication:
*make negative remarks about you in your work, profession, trade, or business
*accuses you of a crime and is to someone other than the police  
*accuse you of adultery
*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 accuse you of any of these things, then you would have to show that the words caused you a financial loss.
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.


==What about the right to free speech?==
===Defences to a claim of defamation===  
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.
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.  


==What are the defences to a defamation lawsuit?==
The following are defences to an action for defamation.
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===
====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.
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.


===2.  Absolute privilege===
====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.
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 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.
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 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.  
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.


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


===3.  Qualified privilege===
And absolute privilege protects statements in Parliament.
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.  
 
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.
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.  
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 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.   
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.   


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.
====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:
===4.  Fair comment===
*expressed in a way that shows they are '''opinion''', not fact,
We all are free to comment—even harshly—about issues of public interest, as long as we are clear that our comments are:
*based on facts that can be proven and those facts are either stated or otherwise known to readers or listeners, and
*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.
*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.
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.


===5. Responsible communication on matters of public interest===
====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:
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 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 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''.
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==


===6. Innocent dissemination===
===What’s involved in suing someone for defamation?===
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:
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 [[What is Small Claims Court? (Script 165)|starting a lawsuit (no. 165)]].  
*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?==
{| class="wikitable"
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.
|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 (Script 429)|resolving disputes without going to court (no. 429)]].
|}
===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.


==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]
[updated February 2018]


'''The above was last reviewed for accuracy by Karen Zimmer and edited by John Blois.'''
'''The above was last reviewed for legal accuracy by [https://www.ahbl.ca/people/lawyers/karen-zimmer/?hilite=%27karen%27 Karen Zimmer], Alexander Holburn Beaudin + Lang LLP.'''


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