In Ontario, what is defamation? What are the elements of defamation? What are the defences to defamation? Find out by reading this article!
In this article, ‘plaintiff’ refers to the person suing for defamation and ‘defendant’ refers to the person accused of defamation.
What is Defamation?
Defamation is the harm caused to the plaintiff’s reputation by a false written or oral statement made by the defendant about the plaintiff to a third party. Simply put, it is reputational harm caused by the spreading of a lie.
Defamation in Canada varies from province to province. In Ontario, legislation on defamation is found in the Libel and Slander Act.
What are the types of defamation?
Libel is defamation with a permanent record. Libel is usually made in written form and traditionally associated with print media, but also applies to other forms of communication such as an email, radio, TV broadcast, newspaper, etc. With the advent of the internet and social media, libel is more likely to be found on the internet.
Slander is defamation with no permanent record such as oral communication, gestures or signs.
What are the Elements of Defamation?
For a defamation lawsuit to be successful, whether, for libel or slander, the plaintiff must demonstrate:
- That the words in question were defamatory
- That the words referred to the plaintiff
- That the words were communicated to at least one person other than the plaintiff
If the plaintiff is suing for libel, then once he/she can prove these three elements, the courts will presume that the words in question are false and damaging. In other words, a plaintiff suing for libel will not have to prove that the words are false or that he/she suffered damages because of the statements. Additionally, the plaintiff does not need to prove that the defendant was careless or intended to cause harm.
However, a plaintiff suing for slander will have to show that he/she suffered damages or financial loss as a result of the slander.
Once these three elements of defamation have been established, whether for Libel or Slander, the onus shifts to the defendant to provide a valid defence.
What are the Defences to Defamation:
Justification looks at what is true; something that is true cannot be defamatory. If the defendant can prove that the words are true, then a claim of defamation cannot succeed.
The defence of absolute privilege can only succeed in a limited number of circumstances. If the circumstances under which a defamatory statement is made does not fit into a recognized category, then a defence of absolute privilege is likely to fail. The recognized circumstances in which absolute privilege applies are outlined below:
- The acts of high executive officers of the state in the performance of their official duties.
- Statements made during parliamentary proceedings.
- All statements made within the context of judicial proceedings. This category has been extended to include quasi-judicial proceedings and, in some cases, to those performing quasi-judicial functions like an investigation.
- A fair and accurate report of court proceedings, without any comment, as set out in some statutes.
Qualified privilege can act as a defence for otherwise defamatory words on certain occasions. Qualified privilege attaches to the occasion, not to the communication of the parties. Once the occasion is shown to be privileged, the defendant is free to publish remarks about the plaintiff that may be defamatory and untrue. To establish that an occasion is privileged, the defendant must prove:
- An interest or duty on their part to make the statements. The nature of this interest or duty can be legal, social or moral.
- That the person receiving the statements had a corresponding interest to receive them.
The courts determine where qualified privilege applies on a case-by-case basis. Examples of when qualified privilege has been found to exist include:
- Where the safety or well-being of another person is at stake;
- Statements to further a common or mutual interest shared by publisher and recipient; and
- Statements by public officials to protect the public interest.
Fair comment is a defence for defamatory comments on matters of public debate. The central purpose of the defence of fair comment is to protect the value of free expression. The fair comment defence will apply where all of the following are true about the comment:
- It is on a matter of public interest.
- The comment is based on fact.
- The comment is recognizable as a comment, but it can include inferences of fact.
- The comment satisfies an objective test: could any person honestly express the opinion on the proved facts?
Responsible Communication on Matters of Public Interest:
The defence of responsible commutation on matters of public interest may be of particular interest to media entities and will apply where:
- The publication is on a matter of public interest.
- The publisher was diligent in trying to verify the allegation.
The defence of consent is rare. Where the defence of consent is raised, the defendant must be able to convince the court that the plaintiff consented to the publishing of defamatory statements. For the defence of consent to apply, the consent must be clearly established for each publication of the defamatory material. Consent can be express or implied.
The innocent dissemination defence protects subordinate distributors from liability. Subordinate distributors must show:
- They have no actual knowledge of an alleged libel.
- They are aware of no circumstances to put them on notice to suspect a libel.
- They committed no negligence in failing to find out about the libel.
Malice- for the defences of fair comment and qualified privilege :
The defences of fair comment and qualified privilege can be defeated if the plaintiff can demonstrate that the defendant was motivated by malice. Malice will be found if the following is applied to the comment(s):
- The defendant knows the comments are false.
- The defendant published it with reckless indifference, whether it is true or false.
- The defendant had the dominant purpose of injuring the plaintiff because of spite or animosity.
- The defendant published it for some other dominant purpose that is improper or indirect, or, if the occasion is privileged, for a dominant purpose not related to the occasion.
What are the remedies awarded for defamation:
Damages are monetary compensation for the harm to the plaintiff’s reputation.
For a more comprehensive discussion on the types of damages available for lawsuits, visit the Ministry of the Attorney General website.
An injunction usually takes the form of an order preventing or restraining the defendant from publishing further defamatory material about the plaintiff. Injunctions are commonly awarded in addition to monetary damages.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.