Defamation 101


By
Yousef Elsohemy
May 13, 2020

Most people know what it means to be defamed. The common meaning of defamation is a negative statement made about a person that hurts their reputation. Just as with most terms, the legal definition of defamation is more detailed and complex than its regular meaning. If you ask a lawyer whether you have a strong case for defamation, you run the risk of receiving their favourite answer: “it depends”.

The Legal Definition of Defamation

The following are the legal requirements for a plaintiff (the person suing) to show that a statement was defamatory:

  1. the words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
  2. that the words in fact referred to the plaintiff; and
  3. that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

In short, a defamatory statement is one that lowers the plaintiff’s reputation, is communicated to a person other than the plaintiff, and is about the plaintiff.

Although the legal standard to show a statement was defamatory is low, winning a defamation lawsuit is not as simple. Most lawsuits involving defamation are decided based on the defendant’s ability to rely on an available defence.

Defences to Defamation

 The defences to defamation are:

  1. truth or justification;
  2. fair comment;
  3. absolute privilege;
  4. qualified privilege; and
  5. responsible communication on matters of public interest.

Truth or Justification

A defamatory statement is justified if it can be proven to be true by the defendant. Justification may be an easy defence to understand but it can be a difficult defence to prove.

Fair Comment

Although the meaning of a “comment” is slightly broader than just an opinion, it is fair to say that the defence of fair comment is generally used to defend a statement of opinion. The following are the elements of fair comment: 

  1. the comment must be on a matter of public interest;
  2. the comment must be based on fact;
  3. the comment, though it can include inferences of fact, must be recognisable as comment;
  4. the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and
  5. even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice.

Absolute Privilege

Absolute privilege is a defence for situations where, in the interest of public policy, the person making the statement should be protected from liability. This defence is most applicable to those in parliament or in the legal industry. Examples of statements protected by absolute privilege include: 

  1. statements made in the course of judicial or quasi-judicial proceedings or in any of the associated documents, such as pleadings and affidavits;
  2. statements made by one officer of state to another in the course of official duties; 
  3. parliamentary proceedings and official parliamentary reports; and
  4. fair and accurate newspaper or broadcast reports of court proceedings.

Qualified Privilege

Just like with absolute privilege, qualified privilege attaches to the occasion upon which a statement is made rather than the statement itself. There is no exhaustive list of occasions that can give rise to the defence of qualified privilege. In general, qualified privilege arises when it is made in the performance of a social, moral, or legal duty in which there is a common, or reciprocal, interest between the parties making and receiving the statement. 

One example of qualified privilege is where a prospective employer contacts a reference provided by an interviewee. The occasion in which the reference provides information to the prospective employer would likely be protected by qualified privilege. Although the occasion itself gives rise to the defence of qualified privilege, the plaintiff could defeat the defence if they prove the negative statements made by the reference were motivated by malice. Qualified privilege requires statements made on the occasion to be done so in good faith.

Responsible Communication on Matters of Public Interest

This defence is available for journalists and other media who are sued for making a defamatory statement in a publication. In assessing the validity of this defence, the court will consider whether the publication was on a matter of public interest and whether the publication of the defamatory communication was responsible. Whether the defamatory communication was responsible will be assessed based on the following factors:

  1. the seriousness of the allegation;
  2. the public importance of the matter;
  3. the urgency of the matter;
  4. the status and reliability of the source;
  5. whether the plaintiff's side of the story was sought and accurately reported;
  6. whether the inclusion of the defamatory statement was justifiable;
  7. whether the defamatory statement's public interest lay in the fact that it was made rather than its truth; and
  8. any other relevant circumstances.

Remedies

A successful plaintiff in a defamation lawsuit can recover monetary damages, obtain an injunction restraining the defendant from doing or continuing to do an action, and/or obtain a mandatory order compelling the defendant to take an action to rectify the injury caused to the plaintiff.

A plaintiff can ask the court for an injunction preventing the defendant from repeating the defamatory statements. If the defamatory statement is published or posted online, a mandatory order that it be removed can also be requested. Given the nature of defamation, a plaintiff may seek creative settlement agreements in order to expedite a resolution and avoid a full trial. 

Damages

In civil lawsuits, a defendant found liable must compensate the plaintiff for their loss in the form of damages. Damages can be broadly categorized into general and special damages. General damages are losses that do not have a monetary figure attached to them, such as pain and suffering. Special damages are for losses that to have a monetary figure attached to them, such as damage to a vehicle, or loss of a business contract. 

General Damages

In the defamation context, general damages are awarded to compensate the plaintiff for injuries to their reputation, self-confidence, social standing, and future economic damage that cannot be quantified. These general damages cannot be calculated by a formula. Instead, the following are some factors that a court may use in assessing damages:

  1. the nature of the statement;
  2. the conduct of both parties;
  3. the plaintiff’s position and standing;
  4. any emotional distress caused to the plaintiff;
  5. any expense to which the plaintiff has put in counteracting the libel; and
  6. whether the vindication of his or her reputation is the plaintiff's primary goal.

A plaintiff is more likely to receive monetary compensation when the defendant refuses to retract their statement and issue an apology. If the defendant does provide a public apology early in litigation, then the plaintiff may continue the lawsuit but should anticipate receiving significantly less general damages. Although predicting general damages in a defamation lawsuit is difficult, reviewing previous cases with similar circumstances is helpful to develop an estimate.

Special Damages

In many lawsuits, general damages are more difficult to quantify than special damages. Defamation claims are the opposite. Special damages can arise in cases where a company or person is defamed resulting in a loss of business. The challenge for the plaintiff is to come up with the necessary evidence proving that any loss of business was actually caused by the defamatory statement and not by some other reason. When the plaintiff does not have such evidence, the general damages award will attempt to compensate for the entire loss.

Punitive Damages

Unlike general and special damages, punitive damages are not intended to compensate the plaintiff for their loss. Rather, punitive damages are intended to punish and deter the defendant’s behaviour. They are awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. The presence of malice is a key factor in determining whether punitive damages are awarded. An apology for the defendant reduces the likelihood of punitive damages being awarded.

Anti-SLAPP Motions

Section 137.1 of the Courts of Justice Act allows a defendant to bring a motion to defeat a SLAPP lawsuit. SLAPP is an acronym for Strategic Lawsuit Against Public Participation and includes defamation claims that limit debate and expression. Accordingly, Section 137.1 motions are called anti-SLAPP motions. The purpose of section 137.1 is to encourage individuals to express themselves on matters of public interest without fear of legal action.

An anti-SLAPP motion is unique because of its legal costs consequences. If a defendant brings and wins an anti-SLAPP motion, they will be awarded 100% of their legal costs for the entire motion and lawsuit. By contrast, if a defendant brings and loses an anti-SLAPP motion, they will not be ordered to pay any of the plaintiff’s legal costs for that motion. For this reason, among others, anti-SLAPP motions are a common and useful tool that should be considered by defendants in a defamation lawsuit.

To be successful on an anti-SLAPP motion the defendant must show that their allegedly defamatory statement related to a matter of public interest. If that hurdle is met, the plaintiff must clear two of their own hurdles to win the motion. 

The plaintiff’s first hurdle is the merits-based hurdle in which the plaintiff must show that the lawsuit has substantial merit and that the defendant has no valid defence. Second, the public interest hurdle, where the plaintiff must show the harm suffered by the plaintiff is sufficiently serious that the public interest in permitting the lawsuit to continue outweighs the public interest in protecting that expression. If the plaintiff meets both of these hurdles, the motion will not succeed and the plaintiff will have the upper hand in the lawsuit going forward.

Limitation Period

The basic limitation period in Ontario is 2 years. That means you cannot bring a lawsuit more than 2 years after discovering that you have a claim. However, the Libel and Slander Act provides a shorter three month limitation period for libel (written defamation) in a newspaper or in a broadcast. In addition, a plaintiff who sues for libel in a newspaper or broadcast must serve the defendant with a notice of action in writing within six weeks of discovering the libel. 

The Libel and Slander Act’s definitions of broadcast and newspaper are technical, open-ended, and continue to develop in the courts. At a broad level, the Libel and Slander Act will apply to news media, newspapers, their online publications and other forms of journalism. The Libel and Slander Act does not apply to individual posts on social media such as twitter that are made by regular individuals.