What is Defamation?
Expression which tends to lower a person’s reputation in the estimation of right-thinking members of society generally, or to expose a person to hatred, contempt or ridicule, is defamatory. Expression which would cause a person to be shunned or avoided is also defamatory.
A defamatory meaning may be conveyed by the literal meaning of words. For example, calling someone “corrupt” or a “thief” or a “murderer” is normally defamatory.
More often, the defamatory meaning is conveyed as a matter of impression to the average, ordinary reader, listener or viewer, in the context of the publication as a whole. This is known as an inferential meaning.
Anyone who authorizes, incites, approves, encourages or assists in the communication of defamatory expression, pursuant to a common design, may be liable together with the person who actually communicates the defamatory expression.
Defamatory expression is presumed to be false.
Libel and slander
In British Columbia, the law of defamation still distinguishes between libel and slander. Slander is oral defamation. Libel is defamatory expression in a non-transitory form, such as books, articles, radio or television broadcasts, websites, emails, blogs, Facebook posts, tweets, and YouTube posts.
Damages are presumed in the case of libel. Subject to certain exceptions, slander is not actionable unless the person defamed can prove actual monetary loss.
In a number of provinces, the distinction between libel and slander has been eliminated by defamation statutes which typically provide that where “defamation” is proved, damage shall be presumed.
Potential Defences to a Defamation Claim
Where the plaintiff proves that the defendant has published defamatory expression about the plaintiff to at least one other person, the onus shifts to the defendant to establish a defence in order to escape liability.
Complete Defences at Common Law
The primary liability defences include truth (justification), fair comment, privilege (absolute or qualified), or responsible communication.
A defence of truth alleges that the defamatory expression is true in substance and in fact. The onus is on the defendant to prove that the defamatory meaning (literal or inferential) allegedly conveyed by the expression at issue was true in substance.
Truth is a defence even if the defamatory expression was published with actual malice.
The usual exigencies of litigation apply. The court is free to accept or reject the whole or any part of the evidence of any witness at trial. There is no such thing as a guaranteed outcome in any given case.
Fair comment (Honest comment on true facts)
The defendant has the onus of proving that the sting of the defamatory expression is a comment, as opposed to a statement of fact, on a question of public interest, and that there is a sufficient basis of facts stated in the publication or otherwise known to the reader, viewer or listener to anchor the defamatory comment. The defendant must also prove that, objectively, a person could have honestly expressed the defamatory comment on the proven facts.
Even though the comment satisfies the objective test of honest belief, the fair comment defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice.
At common law, there are privileged occasions when the public interest in free and candid speech trumps the public and private interest in protecting individual or corporate reputation. A crucial feature of the privilege defence is that it protects defamatory errors of fact which are not excused under the defences of justification or fair comment. This defence applies to an occasion where the defendant has an interest or a duty – legal, social or moral – to communicate the defamatory expression and its recipients have a corresponding duty or interest to receive that communication.
Although a communication occurs on an occasion of qualified privilege, the defence is lost if the plaintiff proves that the defendant was actuated by express malice, or that the defendant included anything which was not relevant or reasonably germane, of the manner and extent of communication was excessive.
The common law defence of absolute privilege provides complete immunity for defamatory expression in certain circumstances, such as testimony during a judicial or quasi-judicial proceeding or statements in Parliament or a provincial legislature, even if the statements were published with actual malice.
Responsible communication on matters of public interest
The relatively new defence of responsible communication, which was recognized by the Supreme Court of Canada in 2009, protects a defamatory publication on a matter of public interest where the defendant was diligent in trying to verify the truth of the allegation about the plaintiff. Among other factors, the Court will consider: (a) The seriousness of the allegation; (b) The public importance of the matter; (c) The urgency of the matter; (d) The status and reliability of the source; (e) Whether the plaintiff’s side of the story was sought and accurately reported; (f) Whether the inclusion of the defamatory statement was justifiable; (g) Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) Any other relevant circumstances. An individual’s reasonable expectation of privacy must be respected in this determination.
The onus of proof rests on the defendant to establish this defence. A defendant who has acted with actual malice in publishing a defamatory allegation has by definition not acted responsibly.