The laws regarding defamation aim to balance the right to freedom of expression with the right to not have harm done to one’s reputation.
Defamation is communication about a person that tends to hurt the person’s reputation. Defamation is a strict liability tort. In other words, it doesn’t matter if the defamation was intentional or the result of negligence. The communication must be made to other people, not just to the person it’s about.
Slander is defamation that’s temporary, i.e., with no permanent record. Normally it’s a spoken statement but can also be a hand gesture or something similar.
Libel is defamation with a permanent record like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast.
The law treats libel and slander differently. With a libel claim, the assumption is that the person asserting defamation has suffered a financial loss. If their claim is successful, they’re entitled to compensation (damages).
This isn’t the case with slander. To establish slander, the person who started the claim must show they suffered a financial loss. That is, unless the communication:
- Accuses them of a crime and is to someone other than the police
- Accuses them of having a contagious disease
- Makes negative comments about them in their work, profession, trade, or business
- Accuses them of adultery.
Currently in Canada, as well as most common law jurisdictions, to make a claim of defamation, a plaintiff must establish three things:
- The impugned words refer to the plaintiff
- The words were published by the defendant to a third party.
- The statement was defamatory in the sense that reasonable people would believe that it tended to lower the plaintiff’s reputation in the community. A defamatory statement:
- Tends to lower a person in the estimation of right-thinking members of society generally
- Exposes the person to hatred, contempt, or ridicule
- Is disparaging, able to discredit, and is injurious towards the person’s reputation in office, profession, calling, trade, business.
In his paper Defamation Law in the Age of Social Media, lawyer Noah Robinson-Dunning notes: “When all three of these elements are made out, there is a presumption that the words are false and that they caused the plaintiff harm. Proof of malice or fault is not necessary to establish defamation.”
Further tests for defamation include:
- Publication must be read as a whole, not in isolation.
- The meaning of the words in their natural and ordinary meaning conveyed to an ordinary person.
- The words are judged objectively, i.e., based on fact, not on personal opinions or feelings.
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