Defamation: Libel and Slander

What is defamation?

Defamation is communication about a person that tends to hurt the person's reputation. It causes the reader or listener to think less of the person. The communication must be made to other people, not just to the person it's about. If defamation is spoken, then it is called slander. If it is written, it is called libel. It can also be a gesture, which is a type of slander.

The law protects your reputation against defamation. If someone defames you, you can sue them for money (called damages) for harming your reputation. You have to sue in Supreme Court, not Provincial Court, and you have to sue within 2 years of the defamation. This is the limitation period. It starts when the defamatory statement was made or published—not when you discovered it. For more on the court system, check script 432, called “Our Court System and Solving Disputes”.

The law doesn't protect you from a personal insult or a remark that injures only your pride. It protects reputation, not feelings. So if someone calls you a lazy slob, you might be hurt, but you would not have a defamation complaint unless the statement was made to another person.

If a person tells someone that you cheat in your business dealings, then you probably do have a good reason to sue, as long as he says it to someone else, not just to you.

Defamation can be a crime under the Criminal Code, but only rarely. This script is about civil, not criminal, defamation. If someone has defamed you, you may also be able to sue for a violation of your privacy under the provincial Privacy Act. Further, section 7 of the BC Human Rights Code prohibits another type of defamation, namely, a discriminatory publication. For more information on that, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. Or see its website at www.bchrt.bc.ca. Also, check script 236, called “Human Rights and Discrimination Protection”.

What is libel?

Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If you can prove that someone libeled you, and that person does not have a good defence (see the section on defences below), then a court will presume that you suffered damages and award you money to pay for your damaged reputation. But going to Supreme Court is expensive and even if you win, you may not get as much as it costs you to sue. In deciding on damages, the Court will consider your position in the community. For example, if you are a professional, damages may be higher.

What is slander?

Slander is the type of defamation with no permanent record. Normally it's a spoken statement. It can also be a hand gesture or something similar. The law treats slander differently from libel: with slander, you have to prove you suffered damages, in the form of financial loss, to get compensation. But with libel, the law presumes you suffered damages. For example, say that Bill told John you were a cheat, and then John refused to do business with you because of that. You sue Bill and prove that you lost business with John because of what Bill said. Bill would have to pay you for the loss of John's business, but not for the general damage to your reputation. It can be very hard to prove this sort of financial loss. That's why most slander cases never go to court.

But in the following four examples, a slander lawsuit may succeed without your proving financial loss. Even though there's no permanent record of the slander, the law will presume damages, as if it were libel, if someone:

• accuses you of a crime (unless they made the accusation to the police).
• accuses you of having a contagious disease.
• makes negative remarks about you in your work, profession, trade, or business.
• accuses you of adultery.

What about the right to free speech?

The law protects a person's reputation but this protection can restrict other rights, such as the right to free speech. The law tries to balance these competing rights. Sometimes, even though someone made a defamatory statement that hurt a person's reputation, the law considers other rights more important. The law allows the following defences for a person who makes a defamatory statement.

What are the defences to a defamation lawsuit?

If someone sues for defamation, the most common defences are:

• truth (known in law as "justification")
• absolute privilege
• qualified privilege
• fair comment
• responsible communication on matters of public interest

1. Truth or justification

A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence if you sue them for defamation. They just have to prove, on the balance of probability, that their statement is true.

2. Absolute privilege

People must be able to speak freely in our justice and political systems without worrying that someone may sue them. The 3 main examples of this defence are statements made:

• in Parliament.
• as evidence at a trial or in court documents, in a criminal or civil case.
• to a quasi-judicial body, such as a regulatory professional association like the law society, that is investigating a complaint.

This privilege does not apply if a person repeats their statement outside of Parliament or the court or regulatory process. It also does not apply if a person tells someone they made a discipline complaint.

This defence also allows the fair and accurate reporting of court proceedings in the media, such as newspaper reports of a trial.

3. Qualified privilege

This defence is where remarks that may otherwise be defamatory were conveyed to a third party non-maliciously and for an honest and well-motivated reason. Say a former employee of yours gave your name to an employer as a reference and that employer calls you for a reference. You say, "Well, frankly, I found that this employee caused morale problems." As long as you act in good faith and without malice, and your statement is not made to more people than necessary, then the defence of qualified privilege protects you if the former employee sues you for defamation. You gave your honest opinion and the caller had a legitimate interest in hearing it.

4. Fair comment

We all are free to comment—even harshly—about issues of public interest, as long as we are clear that our comments are:

• statements of opinion, not fact.
• based on facts that can be proven.
• not made maliciously.

For example, a newspaper columnist may write that a Member of Parliament (an MP) says he supports equality and equal rights, but he opposes same-sex marriages. The columnist writes that the MP is hypocritical. If the MP sues the columnist for defamation, the columnist may have the defence of fair comment.

5. Responsible communication on matters of public interest

In a December 2009 case, the Supreme Court of Canada established this new defence to a libel claim. The court said that journalists should be able to report statements and allegations—even if not true—if there’s a public interest in distributing the information to a wide audience. This defence, which looks at the whole context of a situation, can apply if:

• the news was urgent, serious, and of public importance, and
• the journalist used reliable sources, and tried to get and report the other side of the story.

The court defined journalist widely to include bloggers and anyone else publishing material of public interest in any medium.

What effect does an apology have?

A newspaper or a TV or radio station that publishes or broadcasts a libel can limit the amount of the damages they may have to pay by publishing or broadcasting an apology right away.

Summary

The law of defamation protects your reputation against false statements. If a person makes a false statement to someone and it hurts your reputation, you can sue the person who made the false statement for damages. But because of other competing rights in our society, such as free speech and fair comment, you will not always win.

[updated March 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

An award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

A time period after which someone may not make a claim because the right to do so has expired. The time for making a claim is set by legislation, and limitation periods differ depending on the type of claim or the relationship between people making and defending the claim.

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

(1) A reply, a rebuttal, an answer to a court proceeding or an application, or (2) a statement as to why a particular claim or application should not succeed.

A mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration," and "family law arbitrator."

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

In law, (1) the duty a lawyer has to keep their client’s information confidential, including communications between the lawyer and client and advice given to the client, or (2) the client's right to have their confidential communications kept secret and protected from disclosure. See "lawyer."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

Acting in an honest, truthful, open, and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase bona fide. See "bad faith."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

In law, (1) a lawyer's advice to their client, (2) a lawyer's analysis of a legal problem, or (3) the views of an expert on an issue in an action. See "expert evidence" and "opinion evidence."

The highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

In law, something that is relevant or important. A material fact, for example, is a fact relevant to a claim or a defence to a claim. See "claim," "evidence" and "fact."