Documentation:Torts/Defamation

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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In the news
Johnny Depp and Amber Heard
Photo of Johnny Depp and Amber Heard
Hollywood stars Johnny Depp and Amber Heard concluded their lawsuits against one another, including defamation, in the summer of 2022. The trial was live-streamed and gained a staggering amount of media attention, with CBC calling it a "media circus".[1]

Defamation
The tort of defamation responds to harms to a plaintiff's reputation. The modern tort derives from the actions of libel and slander. Libel is a written or more permanent defamatory statement (i.e. published in a newspaper or photographed) and is conventionally actionable without proof of damage.[2] Slander is a spoken or momentary defamatory statement (i.e. said in a meeting or on the radio), and, unlike libel, "requires proof of special damages, unless the impugned words were slanderous per se".[2][3] In many jurisdictions, the distinction between libel and slander has been merged into the single tort of defamation.

Common law elements

The tort of defamation[4] serves to protect an individual from false statements that can harm their reputation or lessen other's opinions of the individual.[5] As "[d]efamation is a tort of strict liability ... it is unnecessary to prove that the defendant was careless or intended to cause harm."[6]

Elements of defamation[6][7]
1. [T]he impugned words were defamatory;
2. [T]hey referred to the plaintiff; and
3. [T]hey were published, meaning that they were communicated to at least one other person.

When these three elements are proven by the plaintiff on the balance of probabilities, "falsity and damage are presumed and the onus shifts to the defendant to advance a defence in order to escape liability."[6][3]

Defamatory words

Defamatory words are "words that tend to lower the plaintiff’s reputation in the eyes of a reasonable person."[8] Courts will consider the relevant community standards, the context of the statement, and the mode of publication (verbal cues, physical gestures, etc.) to determine whether a statement is defamatory.[9] A statement does not need to be defamatory in the literal meaning of the statement, as long as the audience could reasonably interpret the statement in a way that would make it defamatory.[10]

Defamation in British Columbia
Hosted by People's Law School with lawyer Daniel Coles, this webinar provides an overview of the tort of defamation with a focus on British Columbia.[11]


Reference to the plaintiff

The alleged defamatory statement must clearly refer to a particular individual.[12] "Where the plaintiff is not specifically named, the question is: would the statements lead reasonable people who know the plaintiff to conclude that they refer to the plaintiff? ... The test is whether the recipient would, in light of the surrounding circumstances, reasonably believe that the person referred to in the defamatory statements is the plaintiff."[12] If the statement refers to a group of individuals, the group may be considered to defamed individually based on context.[13]

Publication

Defamatory words about a plaintiff only amount to the tort of defamation when they are published.[14] While the mode of publication and extent of audience exposure can vary considerably, publication is an essential element of the action.[15]

Balancing interests

A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.[16]

In the news
McLibel
In 1997, McDonald's brought a claim for libel against two environmental activists, and the case became known as the McLibel case.[17]

This 2005 documentary was created by an Independent film company, Spanner Films, and features courtroom reconstructions and "the first interview with a McDonald's spy".[18]

Two interests need to be balanced and addressed when the courts address the tort of defamation—protection of an individual's reputation and freedom of speech.[2] The Charter guarantees freedom of expression under section 2(b) and it is "essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization."[19] For example, in Hansman v. Neufeld,[20] the Supreme Court of Canada ruled that accusations that the plaintiff had engaged in racist hate-speech against a vulnerable minority group amounted to protected counter‑speech of the defendant for which the defamation tort did not lie.[21] This said, freedom of expression is not an absolute right.[22]

Statutes modifying defamation

The common law of defamation has been modified and partially codified in statute:

Legislation modifying defamation
Alberta: Defamation Act, RSA 2000, c D-7.
British Columbia: Libel and Slander Act, RSBC 1996, c 263.
Manitoba: The Defamation Act, CCSM c D20.
New Brunswick: Defamation Act, RSNB 2011, c 139.
Newfoundland & Labrador: Defamation Act, RSN 1990, c D-3.
Nova Scotia: Defamation Act, RSNS 1989, c 122.
Northwest Territories & Nunavut: Defamation Act, RSNWT 1988, c D-1.
Ontario: Libel and Slander Act, RSO 1990, c L.12.
Prince Edward Island: Defamation Act, RSPEI 1988, c D-5.
Québec: Press Act, CQLR, c P-19.
Saskatchewan: Libel and Slander Act, RSS 1978, c L-14.
Yukon Territory: Defamation Act, RSY 2002, c 52.

Defences

Gertie's Law on defamation
Discover more on defamation in this podcast authorized by the Supreme Court of Victoria(Australia).[23]

There are a number of defences that respond specifically to allegations of defamation, including the defences of truth (also called justification), privilege, fair comment (also called honest opinion), responsible communication on a matter of public interest, innocent dissemination, and consent. Removing or taking down the alleged defamatory statement is not a defence to the tort of defamation, although it will be relevant to assessment of remedies.[24]

Truth / justification

Truth (or justification) is an absolute common law defence (not applicable in Québec[2]) to defamation where the truth of the impugned comment is proven on a balance of probabilities.[25] The defendant does not have to prove the "truth of each and every word or the literal truth of the statement ... [just] that the gist or sting of the defamation was ... substantially true".[26] Even if the statements made by the defendant were harmful to the plaintiff, so long as they were true, an action in defamation will not succeed.[2] This defence is concerned with facts, not beliefs—if the statements are false, even if the defendant believed them to be true, this defence will not be available to the defendant.[27]

Privilege

Qualified privilege

The defence of qualified privilege arises when a statement "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."[28] Qualified privilege "attaches to the occasion upon which the communication is made, and not to the communication itself".[29] The defendant will escape liability only if they acted without malice.[30] Qualified privilege will fail as a defence if the interest or duty has exceeded its limit.[31]

In the news
Municipalities and qualified privilege
Thatcher-Craig v. Clearview (Township), was a dispute between a group of hops farmers seeking a micro-brewery permit in the Township of Clearview.[32]
Picture of a hops farm
Following a series of disagreements, the township published a report on their website, which cause a wave of letters to be sent by the public to the township.[33] They published these letters on their website, and the hops farmers sued the township for defamation.[33] The Ontario Court of Appeal found that municipalities fell within the scope of qualified privilege when posting potential defamatory material on their websites.[33] The court found that qualified privilege was able to be applied to material that "could be accessed by those who did not have a direct interest in them".[33]

Absolute privilege

Absolute privilege is a narrow but powerful defence that entails the defendant escaping liability even if the statement is proven to be false or motivated by malice. It is meant to "shield speech from claims in defamation on a recognized occasion of such privilege."[34] As a common law rule, this defence "attaches to any statements made in the course of civil litigation ... and is intended to ensure participants in a lawsuit, including counsel, are not impeded in making such statements or other communications as they consider appropriate given their role in the proceedings."[35] This defence shields from tort liability "testimony during a judicial or quasi-judicial proceeding or statements in Parliament or a provincial legislature, even if the statements were published with actual malice."[36]

Fair comment / honest opinion

The defence of fair comment protects a defendant's "defamatory criticisms or expressions of opinion", but "it does not protect defamatory statements of fact".[37]

Elements of fair comment[38][39]
1. [T]he comment must be on a matter of public interest;
2. [T]he comment must be based in fact;
3. [T]he comment, although it can include inferences of fact, must be recognizable as comment/opinion;
4. [T]he comment must be one that any person could honestly make on the proven facts; and
5. [T]he comment was not actuated by express malice.

Responsible communication on matter of public interest

The defence of responsible communication is meant to protect publishers from "liability if they can establish that they acted responsibly in attempting to verify the [published] information on a matter of public interest."[40] This defence is meant to protect and encourage "responsible journalism", especially regarding publishers in the media.[41] The onus of proof lies with the defendant to establish the defence of responsible communication on matter of public interest.[42]

Test for the defence of responsible communication[43]
1. [T]he publication must be on a matter of public interest; and
2. [P]ublication was responsible, having regard to:
  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 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 (“reportage”)
  8. Other considerations: tone, intended meaning, and malice.

Innocent dissemination

The defence of innocent dissemination is "intended to protect people such as newsagents, booksellers, librarians and internet service providers (ISP) who unwittingly publish defamatory matter without negligence on their part".[44] Examples include when a conversation between the two parties is overheard and the defendant did not realize there was an opportunity to be overheard.[45]

Elements of innocent dissemination[46]
1. [I]t was disseminated in the ordinary course of business;
2. [T]he defendant was innocent of any knowledge of the libel contained in the work the defendant disseminated;
3. [T]here was nothing in the work or the circumstances under which it came to the defendant or was disseminated by the defendant that ought to have led the defendant to suppose that it contained a libel; and
4. When the work was disseminated by the defendant, it was not by any negligence on the defendant’s part that the defendant did not know that it contained the libel.

Consent

Consent is another defence to a claim of defamation. If the plaintiff has agreed to the potentially defamatory comment, whether the consent is express or implied, the claim of defamation will not succeed.[2]

Remedies

When a plaintiff succeeds in a claim of defamation, they will typically be entitled to an award of damages. Where a risk of defamation persists, the plaintiff may also seek injunctive relief.[47]

Damages

Damages for defamation seek to address the damage suffered by the plaintiff, including as to the "plaintiff’s reputation, lost work or business, lost wages, lost opportunity, or a lost ability to earn" or emotional harm "such as the plaintiff’s experienced stress, anxiety or shame."[48]

Injunctions

Injunctions are an equitable remedy that either prevent someone from acting (prohibitive) or force them to act (mandatory).[49] Injunctive relief may be awarded where the plaintiff can show that an award of damages would inadequately address the defamatory harm or where there is an ongoing risk that the defendant will defame them.[47]

Discussion questions

  • Lu v. Shen[50] and Caplan v. Atas[51] are two stark examples of the tort of defamation, which both also considered actions for harassment. Which of these two torts, in your view, better addresses the wrongs that arose in those cases?
  • What is the role of the common law of defamation in responding to the risks presented by AI technologies such as ChatGPT? What challenges might plaintiffs face in claiming that content generated by such technologies is defamatory of them?
  1. ↑ Benchetrit, Jenna (24 April 2022). "Johnny Depp, Amber Heard libel trial is nothing short of a media circus". CBC/Radio-Canada.
  2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 Klar, Lewis, N. (6 February 2012). "Defamation in Canada". The Canadian Encyclopedia.
  3. ↑ 3.0 3.1 Grant v. Torstar Corp., 2009 SCC 61 (§5.1.4) at para 28.
  4. ↑ See also the Canadian defamation law Wikipedia page which is a part of their series on Canadian law.
  5. ↑ Lu v. Shen, 2020 BCSC 490 (§5.1.1) at para 175.
  6. ↑ 6.0 6.1 6.2 Lu v. Shen, 2020 BCSC 490 (§5.1.1) at para 174, citing Weaver v. Corcoran, 2017 BCCA 160 at para 70.
  7. ↑ Weaver v. Corcoran, 2017 BCCA 160 at para 34.
  8. ↑ Lu v. Shen, 2020 BCSC 490 (§5.1.1) at para 175.
  9. ↑ Botterell, Andrew (2020). Introduction to the Canadian Law of Torts. Toronto: LexisNexis Canada. p. 185.
  10. ↑ Lu v. Shen, 2020 BCSC 490 (§5.1.1) at paras 176–179.
  11. ↑ People's Law School (29 March 2022). "Defamation in British Columbia (Recorded Webinar)". YouTube.
  12. ↑ 12.0 12.1 Lu v. Shen, 2020 BCSC 490 (§5.1.1) at para 181.
  13. ↑ Weaver v. Corcoran, 2017 BCCA 160 at para 85.
  14. ↑ Lu v. Shen, 2020 BCSC 490 (§5.1.1) at para 182.
  15. ↑ Weaver v. Corcoran, 2017 BCCA 160 at para 34.
  16. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§5.1.3) at para 108.
  17. ↑ McDonald's Corporation, McDonald's Restaurants Limited v. Helen Marie Steel and David Morris, [1997] EWHC QB 366.
  18. ↑ Spanner Films, "McLibel: full documentary (Official)" (12 November 2015), online (video): Youtube <https://www.youtube.com/watch?v=V58kK4r26yk>.
  19. ↑ Grant v. Torstar Corp., 2009 SCC 61 (§5.1.4) at para 1.
  20. ↑ Hansman v. Neufeld, 2023 SCC 14 (§5.1.5).
  21. ↑ Fine, Sean. "Supreme Court of Canada ruling protects 'counterspeech' from defamation lawsuits". The Globe and Mail.
  22. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§5.1.3) at para 102.
  23. ↑ "Gertie's Law Podcast: Defamation". Supreme Court of Victoria.
  24. ↑ Levant v. Demelle, 2022 ONCA 79 at para 65.
  25. ↑ Lu v. Shen, 2020 BCSC 490 (§5.1.1) at para 188.
  26. ↑ Casses v. CBC, 2015 BCSC 2150 at para 550.
  27. ↑ Botterell, Andrew (2020). Introduction to the Canadian Law of Torts. Toronto: LexisNexis Canada. p. 192.
  28. ↑ O'Connor MacLeod Hanna LLP. "https://www.omh.ca/articles/defamation-101.html". O'Connor MacLeod Hanna LLP. External link in |title= (help)
  29. ↑ Hill v. Church of Scientology of Toronto, [1995] CanLII 59 (SCC) (§5.1.3) at para 143.
  30. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§5.1.3) at para 144.
  31. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§5.1.3) at para 146.
  32. ↑ Thatcher-Craig v. Clearview (Township), 2023 ONCA 96.
  33. ↑ 33.0 33.1 33.2 33.3 Macnab, Aidan (1 March 2023). "Municipality posting public comments about land-use issue covered by defamation defence". Law Times.
  34. ↑ Vesely, Marko; Dafoe, Christoper M. (December 2013). "Say anything: The absolute protection given by absolute privilege" (PDF). Canadian Corporate Counsel: 36 – via Lawson Lundell.
  35. ↑ Duncan v. Lessing, 2018 BCCA 9 at para 6.
  36. ↑ McConchie, Roger (2023). "What is Defamation?". McConchie Law Corporation.
  37. ↑ Lu v. Shen, 2020 BCSC 490 (§5.1.1) at para 187.
  38. ↑ Blair v. Ford, 2021 ONCA 841 at para 45.
  39. ↑ Levant v. Demelle, 2022 ONCA 79 at para 64.
  40. ↑ Grant v. Torstar Corp., 2009 SCC 61 (§5.1.4) at para 85.
  41. ↑ Dearden, Richard; Wagner, Wendy (2010). "Canadian Libel Law Enters the 21st Century: The Public Interest Responsible Communication Defence". Ottawa Law Review. University of Ottawa. 41: 353–354 – via CanLII.
  42. ↑ Grant v. Torstar Corp., 2009 SCC 61 (§5.1.4)at para 98.
  43. ↑ Grant v. Torstar Corp., 2009 SCC 61 (§5.1.4) at paras 98, 111–125.
  44. ↑ Legal Services Commission (9 July 2021). "Innocent Dissemination". Law Handbook.
  45. ↑ Botterell, Andrew (2020). Introduction to the Canadian Law of Torts. Toronto: LexisNexis Canada. p. 188.
  46. ↑ Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004), Chapter 14 at 282–83.
  47. ↑ 47.0 47.1 Vesely, Marko; Dafoe, Chris. "Silence is golden: Injunctions in defamation law" (PDF). Lawson Lundell.
  48. ↑ Chand, Pradeep. "Defamation Law". Chand & Co.
  49. ↑ Barnes, J (16 December 2013). "Injunction". The Canadian Encyclopedia.
  50. ↑ Lu v. Shen, 2020 BCSC 490 (§5.1.1).
  51. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.1.2).
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