Defamation

Defamation

1. What is defamation?

Defamation is a tort (or common law cause of action) that exists to allow people to protect their reputations. The cause of action itself, and the defenses, are designed to balance the interests of protection of reputation and free speech.

2. What is the gravamen of defamation?

The gravamen of the cause of action of defamation (or the set of elements or factors that must be proven to succeed in the action), include:

• The statement must be defamatory. A defamatory statement is one that reduces the esteem or respect in which the plaintiff is held by others in the community. The test is objective: it is sufficient to prove that the statement would have this effect in the minds of right-thinking members of society.
• The statement must be reasonably understood as referring to the plaintiff. Reference may be by name, description or context.
• The statement must also be published to a third person who heard it or read it and understood it.

3. What are the kinds of defamation?

There are two kinds of defamation:

• Libel – if the communication is written
• Slander – if the communication is verbal

The kind of defamation has an effect on the gravamen. For slander, the plaintiff must additionally prove special damage (i.e. that the defamatory statement caused them material or financial loss). There are a limited number of exceptions to this rule. For libel, which is considered more serious, it is actionable without proof of special damage.

Once the plaintiff proves all of the required elements of defamation, the onus of proof shifts to the defendant to raise a defence.

4. What are the defenses to an action in defamation?

There are six complete defenses to an action in defamation (i.e. defences that completely absolve the defendant of guilt):

• Justification – the assertion that the defamatory statement is true
• Privilege – there are two types:
  • Absolute privilege – the assertion that the protection of the statement is in the public interest; examples of types of statements protected by absolute privilege include:
    • All statements made by high executive officers acting in the performance of their official duties relating to matters of state
    • Any communications made during the course of Parliamentary proceedings, or any proceeding of its constituent committees, by members of that body or persons appearing before it
    • All communications made in the course of, or incidental to, the processing and furtherance of judicial and quasi-judicial proceedings
  • Qualified privilege – the assertion that the statement was made in an occasion for the purpose of pursuing or protecting some private interest and made to persons who have a corresponding (legal, social, moral) interest in receiving it; examples of types of statements protected by qualified privilege include:
    • Communications made by doctors about patients in a wide range of circumstances
    • Complaints to police, regulatory bodies or public authorities
    • The proceedings of municipal councils in some circumstances
  • Reportage – the assertion that the defamatory statements are attributed to someone other than, and not adopted by, the defendant. It applies where someone reports a fact – namely, the fact of what someone said. It exists to in order protect media’s ability to provide comprehensive coverage of public debate.
  • Consent – the assertion that the plaintiff, expressly or impliedly, consented to the publication of defamatory statements
  • Fair comment – Its elements are that the statement …
    • must be recognizable as a comment or opinion,
    • must be based on a substratum of true facts,
    • must be made on a matter of public interest, and
    • must be fair by an objective standard – i.e. could any person honestly express the opinion on the proved facts?
  • Responsible communication on matters of public interest – Its elements are that the statement …
    • must be made on a matter of public interest, and
    • must have been made responsibly in that the defendant was diligent in trying to verify the allegations having regard to all relevant circumstances, including, but not limited to,
      • the seriousness of the allegation,
      • the public importance of the matter,
      • the urgency of the matter,
      • the status and reliability of the source,
      • whether the plaintiff’s side of the story was sought and accurately reported,
      • whether inclusion of the defamatory statement was justifiable,
      • whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”),
      • other relevant circumstance such as the tone of the article and the existence of distortion or sensationalism.

There are two partial defenses to an action in defamation (i.e. defences that do not completely absolve the defendant of guilt):

• An apology is a mitigating factor. There are also special statutory provisions relating to apologies by newspapers and broadcasters.
• Retraction applies only to newspapers and broadcasters. If there has been a full and complete retraction in accordance with the applicable statutory requirements, liability is restricted to the plaintiff’s actual damage.

5. What are the remedies for defamation?

• One remedy is an injunction – an order preventing the defendant from publishing further defamatory statements about the plaintiff.
• Another remedy is damages (or financial compensation). Damages in defamation are at large – i.e. if liability is established, damages are not restricted to the actual loss proved by the plaintiff. The quantum (or amount) of damages depends on a variety of factors:
  • the plaintiff’s position and standing,
  • the nature and seriousness of the defamatory statements,
  • the mode and extent of publication,
  • the absence or refusal or any retraction or apology,
  • the whole conduct and motive of the defendant from publication through judgment,
  • any evidence of aggravating or mitigating circumstances.

6. Recent news

• A London, Ontario lawyer’s defamation claim against people who described his comments as racist and misogynistic, arising out of an online debate on Linked-In, was dismissed with costs.

References

Osborne, Philip H. “Chapter 7: Defamation”. The Law of Torts, 6^th ed. Toronto, ON: Irwin Law, March 9, 2020.

Perkel, Colin. “Lawyer’s defamation claim over social media backlash tossed as ‘gibberish’”, The Star (April 29, 2021): https://www.thestar.com.