Civil Litigation
Defamation
What is Defamation?
Defamation occurs when words are printed, spoken or published that harm the reputation of a person or diminish the person in the eyes of the public. Defamation has traditionally been broken down into two categories - libel and slander. Libel involves published words, whereas slander generally consists of spoken words.
- the words that were spoken would harm their reputation in the eyes of a “reasonable person”
- the words were about them; and
- the words were communicated to at least one person other than the person they were spoken about (to a third party).
If the Plaintiff satisfies this test, the Court will assume that the words were untrue.
A person who has made a defamatory statement may have a defence available to them. The courts have recognized a few defences to defamation.
Libel vs. Slander
Libel is a form of defamation usually made in writing and is intentionally false. The intent of the written statement is to harm the repuration or results in negative perceptions to the subject of the written communication. Beyond print, libel can take the form of emails and other electronic media.
Slander is any verbal defamatory statement. It is the action of making a false spoken statement damaging to a person's reputation. Legal action based on slander are brought forth less frequently than lawsuits for libel because there is no permanent record of the alleged statement.
Defence for Defamation
If a defendant can show that what they said was true, they will not be liable in defamation (“Justification”). A defendant will also not be liable for defamation if they can prove that the comment was made in the matter of public interest (“Fair Comment” or “Qualified Privilege”) or in the interest of public policy (“Absolute Privilege”). Many of these defences come from the court’s consideration of the importance of freedom of expression, a right protected by s. 2(b) of the Charter of Rights and Freedoms. Courts have also considered the importance of Canadians’ need for information through the media and other information channels.
To succeed in a claim for defamation, the Plaintiff must prove three things:
- the words that were spoken would harm their reputation in the eyes of a “reasonable person”
- the words were about them; and
- the words were communicated to at least one person other than the person they were spoken about (to a third party).
Recent Experience
In one recent case, our team at NuriLaw successfully brought a motion for summary judgement to dismiss an action in which the Plaintiff alleged libel in circumstances where our client had made statements in a court Affidavit and in the course of investigations by a professional regulator. We successfully dismissed the action using the defences of qualified and absolute privilege. We also received costs of approximately $14,000.00.