Difference between revisions of "Defamation: Libel and Slander"

{{REVIEWEDPLS | reviewer = [https://www.ahbl.ca/people/lawyers/karen-zimmer/?hilite=%27karen%27 Karen Zimmer], Alexander Holburn Beaudin + Lang LLP|date= February 2018}} {{Dial-A-Law TOC|expanded = rights}}

The law of defamation protects a person’s reputation from harm that is unjustified. Learn what kinds of communication are considered defamatory, as well as the defences to a defamation action.

==What you should know==

===The law of defamation protects a person’s reputation===

A good reputation is core to a person’s sense of self-worth and dignity. Once harmed, a good reputation is hard to regain, with sometimes devastating consequences, especially professionally. The law of '''defamation''' protects a person’s reputation from harm that is unjustified.

Defamation is communication about a person that tends to hurt their reputation. It causes people who read or hear the communication to think less of the person.

However, protecting someone’s reputation can restrict other rights, such as the guarantee of freedom of expression under the ''Charter of Rights and Freedoms''.

The law tries to balance these competing rights. Sometimes, even though someone makes a defamatory statement that harms a person's reputation, the law considers freedom of expression more important.

Defamation can also be a crime under the [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec298_smooth ''Criminal Code''], but this is rarely prosecuted. This information is about civil, not criminal, defamation.

If someone defames you, you can sue them for money (called '''damages''') for harming your reputation.

* the communication was '''defamatory''' (that it would tend to lower your reputation in the eyes of a reasonable person),

* it referred to ''you'', and

* it was communicated by the defendant to ''at least one other person''.

The law doesn't protect you from a personal insult or a remark that injures only your pride. It protects your reputation, not your feelings. If someone in a public meeting calls you a nasty word, your feelings might be hurt, but you would have a difficult time showing the communication lowered your reputation in the minds of others.

If someone tells others you cheat in your business dealings, then you would have a much stronger claim that this harms your reputation and is defamatory.

You are not required to show the defendant ''intended'' to do harm, or even that the defendant was careless. If you prove the required elements, the onus then shifts to the defendant to put forward a '''defence''' in order to escape liability.

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If someone publishes a statement that violates your reasonable expectation of privacy, they may have breached your '''privacy rights''' under the BC [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-373/latest/rsbc-1996-c-373.html ''Privacy Act'']

 

If someone publishes a statement that discriminates against you or is likely to expose you to hatred, they may have violated your '''human rights'''. See our information on [[Human Rights and Discrimination Protection|human rights and discrimination protection]].

===Defamation can take different forms===  

If defamation is written or otherwise recorded, it is called '''libel'''. Libel is defamation that leaves a permanent record. Examples would be statements on social media or other online platforms, in newspapers, letters, or emails, or on radio or TV broadcasts. Libel can also be a picture.

If the defamation leaves no permanent record, it is called '''slander'''. Mostly this involves spoken statements. It can also be a hand gesture or something similar.

The law treats slander differently from libel. With slander, you have to show you suffered a '''financial loss''' to get compensation, unless the communication:

* accuses you of a crime and is to someone other than 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

If the words spoken don’t do any of these things, then you would have to show the words caused you a financial loss to establish slander.

===Defences to a claim of defamation===

The law protects a person's reputation, but this protection can clash with ''other'' rights, such as the right to free expression. The law tries to balance these competing rights. Sometimes, even though someone makes a defamatory statement that harms a person's reputation, the law considers freedom of expression to be more worthy of protection.

 

The following are defences to an action for defamation.

 

====Truth or justification====

A statement may hurt your reputation, but if the statement is true, that is a complete defence to an action for defamation. The person who made the statement can defend their statement by proving it is more likely true than not.

 

Freedom of speech without fear of consequences is considered critical for the effective administration of justice. A statement made in judicial proceedings is protected by a defence of '''absolute privilege'''. This is a complete and unqualified defence to an action for defamation.

 

 

Absolute privilege also protects defamatory statements made in all stages of a criminal case. For example, a complaint to the police is protected by absolute privilege — as long as the complaint is not repeated to others.

 

Absolute privilege also protects a person who makes a defamatory statement in a quasi-judicial proceeding, like a hearing before a professional regulatory body such as the Law Society of BC.

 

And absolute privilege protects statements in Parliament.

 

But absolute privilege does not protect a person who repeats their statement outside of the court or judicial process.

 

 

An example of qualified privilege is when a previous employer provides a bad reference to a potential employer. If the previous employer honestly believes what they are saying in providing the bad reference, then qualified privilege may protect them in giving the bad reference.

 

The duty can be legal, social, or moral. The test is whether a person of ordinary intelligence would think a duty existed to communicate the information to the audience it was made to.

 

 

It is hard to rely on this defence for statements made on the internet because the defence protects a person only if they limit their defamatory statements to people who have an interest in hearing the communication. Defamatory statements on the internet are not limited this way. Instead, they go to the public at large. So they do not meet this test unless it is a matter the public would be interested in, or the communication is on a members-only site or service and not open to the public.

 

 

 

 

A more recent defence to libel claims deals with reporting on matters of public interest. 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.

 

 

 

* immediately removed the statement from their website or from distribution when they learned of the defamatory statement.

 

===What’s involved in suing someone for defamation?===

A defamation lawsuit in British Columbia must be brought in Supreme Court, not Provincial Court. It must be brought within two years of the defamation. This window of time is the '''limitation period'''. The clock starts running when the defamatory statement was made or published. To start the lawsuit, you must file documents in court and deliver them to (“serve” them on) the other party. For details, see our information on [[Starting a Lawsuit|starting a lawsuit]].

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Going to BC Supreme Court is expensive. Even if you win, you may spend more on legal fees than you get in damages. A court can award costs to the winner of a lawsuit, but costs cover only a small portion of your full legal costs. For alternatives to bringing a lawsuit, see our information on [[Resolving Disputes Without Going to Court|resolving disputes without going to court]].

===What kinds of damages might be awarded in a defamation lawsuit?===

If the person bringing a defamation lawsuit (the “plaintiff”) can prove that someone defamed them, and the defendant does not have a defence to the claim, then a court may award '''general damages''' for loss of reputation. General damages can range from small to large amounts. It depends on several factors, including:

 

 

The mode and extent of publication is a particularly significant consideration in assessing damages in internet defamation cases.

 

The plaintiff may also be entitled to '''special damages''', such as lost earnings, but only if they can prove that the lost earnings resulted from the defamatory statement, and not from other factors.

 

If someone makes defamatory statements with malice, the plaintiff may also be entitled to '''aggravated''' or even '''punitive damages'''.

 

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. But an apology or retraction does not prevent someone from suing for defamation. It just limits the damages.