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Defamation: Libel and Slander (view source)
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{{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}} | {{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 | 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=== | ===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. | 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. | 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''. | 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. | 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 | 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=== | ===If someone defames you=== | ||
If someone defames you, you can sue them for money (called '''damages''') for harming your reputation. | If someone defames you, you can sue them for money (called '''damages''') for harming your reputation. | ||
To show that someone defamed you, you must show that: | To show that someone defamed you, you must show that: | ||
* 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''. | |||
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. | 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. | 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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|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
If someone publishes a statement that violates your reasonable expectation of privacy, they may have breached your '''privacy rights''' under the BC | 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 | 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]]. | ||
|} | |} | ||
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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. | 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: | 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 | * accuses you of a crime and is to someone other than the police | ||
*makes negative remarks about you in your work, profession, trade, or business | * accuses you of having a contagious disease | ||
*accuses you of adultery | * 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. | 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=== | ===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 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. | The following are defences to an action for defamation. | ||
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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. | 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. | ||
This defence protects defamatory statements made in a civil lawsuit. It covers statements made in court, as well as all preparatory steps, including court filings and examinations for discovery. | This defence protects defamatory statements made in a civil lawsuit. It covers statements made in court, as well as all preparatory steps, including court filings and examinations for discovery. | ||
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 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. | 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. | And absolute privilege protects statements in Parliament. | ||
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====Qualified privilege==== | ====Qualified privilege==== | ||
A defamatory statement made in performing a public or private duty can be protected by '''qualified privilege'''. The protection only applies to statements made to people with a corresponding interest in receiving the statement. | A defamatory statement made in performing a public or private duty can be protected by '''qualified privilege'''. The protection only applies to statements made to people with a corresponding interest in receiving the statement. | ||
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. | 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. | ||
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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. | 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. | ||
There are no exact rules on when qualified privilege arises. It depends on the facts of a case. If the communication is made under qualified privilege, the defence applies even when very strong language is used, or the statement is false. | There are no exact rules on when qualified privilege arises. It depends on the facts of a case. If the communication is made under qualified privilege, the defence applies even when very strong language is used, or the statement is false. | ||
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. | 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. | ||
====Fair comment==== | ====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: | We all are free to '''comment''' — even harshly — about issues of '''public interest''', as long as we are clear that our comments are: | ||
*expressed in a way that shows they are '''opinion''', not fact, | |||
*based on facts that can be proven and those facts are either stated or otherwise known to readers or listeners, and | * expressed in a way that shows they are '''opinion''', not fact, | ||
*not made maliciously. | * based on facts that can be proven and those facts are either stated or otherwise known to readers or listeners, and | ||
* not made maliciously. | |||
For example, a newspaper columnist may write about a politician who says they support equality and equal rights, but are opposed to same-sex marriages. The columnist may write that the politician is hypocritical. If the politician sues the columnist for defamation, the columnist may put forward the defence of fair comment. | For example, a newspaper columnist may write about a politician who says they support equality and equal rights, but are opposed to same-sex marriages. The columnist may write that the politician is hypocritical. If the politician sues the columnist for defamation, the columnist may put forward the defence of fair comment. | ||
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====Responsible communication on matters of public interest==== | ====Responsible communication on matters of public interest==== | ||
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: | 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 courts have defined the term “journalist” widely to include bloggers and others publishing material of public interest in any medium. | * 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 courts have defined the term “journalist” widely to include bloggers and others publishing material of public interest in any medium. | |||
====Innocent dissemination==== | ====Innocent dissemination==== | ||
The defence of '''innocent dissemination''' is important in the internet era. Generally, a person who takes part in publishing a defamatory statement is responsible for its publication. This includes a writer, editor, printer, and distributor. But a person who acts only as a distributor may be able to rely on the defence of innocent dissemination if they: | The defence of '''innocent dissemination''' is important in the internet era. Generally, a person who takes part in publishing a defamatory statement is responsible for its publication. This includes a writer, editor, printer, and distributor. But a person who acts only as a distributor may be able to rely on the defence of innocent dissemination if they: | ||
*did not know they were distributing a defamatory statement, and | |||
*were not negligent in not knowing, and | * did not know they were distributing a defamatory statement, and | ||
*immediately removed the statement from their website or from distribution when they learned of the defamatory statement. | * were not negligent in not knowing, and | ||
* immediately removed the statement from their website or from distribution when they learned of the defamatory statement. | |||
==Common questions== | ==Common questions== | ||
===What’s involved in suing someone for defamation?=== | ===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 | 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]]. | ||
{| class="wikitable" | {| class="wikitable" | ||
|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
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 | 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?=== | ===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: | 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 plaintiff’s position and standing in the community, | |||
*the nature and seriousness of the defamation, | * the plaintiff’s position and standing in the community, | ||
*the mode and extent of publication, | * the nature and seriousness of the defamation, | ||
*the absence or refusal of any retraction or apology, and | * the mode and extent of publication, | ||
*the conduct of the defendant from the time of the defamatory statements to judgment. | * the absence or refusal of any retraction or apology, and | ||
* the conduct of the defendant from the time of the defamatory statements to judgment. | |||
The mode and extent of publication is a particularly significant consideration in assessing damages in internet defamation cases. | The mode and extent of publication is a particularly significant consideration in assessing damages in internet defamation cases. | ||