Defamation: the 15 mins of fame you don’t want

Defamation has existed as long as there have been jerks to perpetrate it and a legal system to name it, but in the internet age it is all too easy for critical or derogatory statements to reach an international audience and to be forever accessible by untold numbers of people. That one cruel, fallacious Facebook posting about you could circulate, harming your reputation and causing you problems in your professional or personal life. It is often in such situations where one wonders if they can sue as a result of these hurtful statements and they call a lawyer to inquire. As is often the case, the answer is maybe.

Defamation refers to communications made about an identifiable person that harm that person’s reputation. If that communication is published or broadcast, it is “libel” and if it is spoken, it is “slander”. For a case of defamation (whether it is libel or slender), three elements must be present:

  1. The communication must be defamatory, which is to say that it must be sufficiently bad that it lowers the reputation of the subject individual in the eyes “right thinking” persons. That it hurt your feelings is not enough; it must hurt your reputation. For example: saying you are a bad dresser is not defamatory; saying that you shoplift your clothes might be.
  2. The communication must have referred to the victim of the defamation in an identifiable way — in other words, is it reasonable that a person who saw this communication would know who it was that the communication was about.
  3. The communication must have been published, broadcast or disseminated in such a way that it reached a third party beyond the defamer and defame.

This means that if someone published an article about you online or in the newspaper, identifying you by name and saying that you are a thief, then you would have satisfied the above three criteria for defamation.

But that is not the end of the story. There are defenses that the person who made the allegedly defamatory statements can raise which may protect them and their speech.

  1. Truth: They can claim that the statements made are true. So if you actually are a convicted thief, then they have the right to say so. The burden is on them to prove what they are saying is true.
  2. Absolute Privilege: If the statements were made in the context of court proceedings or in Parliament, they are permissible, as is any accurate reporting of these statements in the media.
  3. Qualified Privilege: If the statements were made in a context where one party has an obligation (legal, social, moral, professional) to convey accurate information about an individual to another person who has a comparable, legitimate interest in receiving that information, provided that the statements are made without malice. This would apply to, for example, employers providing references on former employees to prospective employers.
  4. Fair Comment: If the statements are made about people or matters of public interest, they are permitted, provided that they are good faith, honest statements of opinion, factually based, and are free of malice. Matters of public interest are fairly wide-ranging and include politics, arts, sports, business, religion, science, and the persons involved. This protects journalists (including bloggers and other non-traditional providers of media content) from legal action if they comment on or criticize such matters. Essentially if they say “in my opinion” it could be construed as fair comment.
  5. Responsible Communication of matters on Public Interest: This is a newer defense established by the Supreme Court of Canada in 2009 and protects journalists from claims of defamation if they are reporting on a matter of public interest and their reporting was responsible (which includes using reliable courses and reporting on both sides of the issue). If these standards are met, the defense may be sound, even if what was reported turns out to be untrue.

Assuming that one is successful in proving that the defamation has occurred, the Court may compensate the victim with general damages for the harm suffered if they can prove damages resulting from the defamation. If the defamation is about a person’s employment, damages are automatic.

It isn’t an easy case to prove, but court cases involving defamation are growing in number and are not likely to decline as it becomes easier to circulate information about people online. It is also a good idea to remember that before you publish a malicious blog post or send a tortious tweet about a rival or enemy, as such thoughtless acts could land you in court. And if you find yourself on the receiving end of some malicious statements, know that, unless the only thing that is hurt is your ego, you do have legal rights.

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