What is defamation?
Defamation occurs when a person communicates false facts about another person and those false facts harm that other person’s reputation. Defamation comes in two forms: libel, which is transmitted through written communication and slander which occurs through spoken communication.
The policy behind the law of defamation is that a person’s image is their brand. Damage to a person’s reputation can have adverse effects on their standing in their community and, in some cases, their livelihood.
How do you prove defamation?
The plaintiff in an action for defamation is required to prove the following three things:
that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
that the words in fact referred to the Plaintiff; and
that the words were published, meaning that they were communicated to at least one person other than the Plaintiff.
Those are the 3 parts of defamation. Those three things must be proved on a balance of probability which means more likely than not or 51% likely.
Once the plaintiff has proven the above elements, there is a legal presumption that:
a) the statement was false;
b) it was published with an intent to hurt the plaintiff; and
c) the plaintiff has suffered damages i.e. lost something of value which can be compensated.
The defendant must disprove these presumptions on a balance of probabilities otherwise the plaintiff will succeed.
What are defences to defamation?
There are several defences available in a defamation suit. A number of these defences turn on the nature of the statement itself and whether it is a statement of opinion or a statement of fact.
What does that mean? An opinion is not necessarily the truth whereas a statement of fact is asserting the truth. An opinion can be defamatory if it is based on truth. A true statement, regardless of how it affected the plaintiff, is not defamation.
However, that does not mean that all false statements are defamation. Other defences are less concerned with the truth of the statement itself and instead emphasize the context or setting that the statement was made in.
Truth is a complete defence even if the defendant acted with intent to hurt the plaintiff. The words must be true according to their natural and ordinary meaning. That is, the statement must be factual and free of innuendo. Innuendo is a legal concept which refers to an indirect hint. For example, say the Premier received money from ABC Corp. on behalf of the province as part of a bidding process to build new infrastructure, and a newspaper published a statement reading “ABC Corp. paid the Premier $500,000.00 to secure a lucrative contract”. The innuendo is that ABC Corp. bribed the Premier.
The onus is on the defendant to prove the truth of the statement. Remember, once the plaintiff has proved the three parts of defamation she can sit back while defendant defends himself.
The defendant cannot just say that the statement is true. He must produce corroborating evidence. If he does not, then he may be subjected to a higher award of damages.
The defence of qualified privilege attaches to the occasion when the defamatory statement is made, not to the statement itself. This defence recognizes that there are certain limited occasions when a person may publish untrue, defamatory statements about another person. However, the person who publishes the defamatory statement must have a legal, social or moral, reason to make it, and the person to whom it is made must have a corresponding interest or duty to receive it. This reciprocity is an essential component of the defence.
Take for example the Tom Brady “deflate gate” scandal. Let’s pretend it was later proven that Tom Brady did not deflate his footballs.
Several critical articles, Facebook posts, and Twitter comments were written about it. But, the statements were made in the context of a national competitive sport. The public had an interest, and in some cases a legal duty, to prevent cheating. Likewise, Tom Brady has an interest, moral or even a legal duty, to prevent cheating and hence receive the statements.
Remember, it is the occasion that is privileged and not the parties. Furthermore, qualified privilege may only be used where there is a sense of urgency. I would argue that the deflate gate scandal created an urgency in the sense that cheating must be stopped as soon as possible.
However, this defence would not work if the statement was made with malice or intent to hurt. So, if it can be shown that one of the critical statements against Tom Brady was only made to hurt him and nothing else, then that statement is defamation.
The defence of fair comment is designed to safeguard freedom of expression on political and social issues or subjects of public interest. To succeed, a defendant must show that the publication is recognizable as an expression of opinion that is recognized as critique or commentary. The comment must be based on accurately stated facts that are set out or are referred to in the publication.
This defence was recently enshrined in the Courts of Justice Act at section 137.1. As an aside, it is odd that this law would be stated in the Courts of Justice Act instead of the Libel and Slander Act which covers defamation.
Basically, the Courts of Justice Act holds that if a person is sued for defamation. That person, the defendant, may make a motion to the court to have the claim dismissed. What she will need to show is the statement relates to a matter of public interest. Once she does that, then the plaintiff must show that
the law suit has substantial merit,
the defendant has no valid defence, and
the harm suffered by the plaintiff from the defamatory statement outweighs the public interest in protecting freedom of expression.
This is a very high onus on the plaintiff. Its almost safe to say that once the defendant shows that the statement relates to a matter of public interest then the claim will be dismissed.
What’s more is that if the claim is dismissed then the plaintiff must pay the defendant’s entire legal fees.
The defence of absolute privilege is restricted to defamatory statements that are made as part of judicial, quasi-judicial, or legislative proceedings. Malice or intent to hurt the plaintiff is irrelevant. To be successful the statements must be shown to be a part of the proceedings. That is, they were made during and within the proceedings.
This defence is intended to protect third-party publishers of a defamatory statement such as bookstores, newsstands, and libraries. However, it is only available where the third-party publisher had no knowledge, express or implicit, that the publication contained defamatory statements.
How much money is a defamation lawsuit worth?
If you successfully claim defamation against someone, you may be awarded damages i.e. money. Assessing damages in an action for defamation is a fact driven analysis. There are several things which come into play; these include:
1. The plaintiff’s position and standing in the community;
2. The nature and seriousness of the defamatory statements;
3. The mode and extent of the publication;
4. The absence or refusal of any retraction or apology;
5. The whole conduct and motive of the defendant from publication through judgment; and
6. The possible effects of the statements upon the plaintiff’s life.
The case law indicates that generally damages will fall into one of three categories, depending on the result of an application of the above factors: $10,000.00 to $30,000.00, $60,000.00 to $80,000.00 and $80,000.00+.
The first category is generally applied to instances of defamation whereby the plaintiff is a “layman” whose overall standing in the larger community remains largely intact. The middle category is applied in instances where the plaintiff is a prominent member of the community whose livelihood relies on his/her reputation in that community. The final category is reserved for egregious circumstances where the defendant is clearly malicious and intent on ruining the plaintiff’s career or well-being. Those defendants generally will not retract their defamatory statement and will instead continue making defamatory statements after notice was given by the plaintiff. It should be noted that the conduct of the defendant, the context behind the defamatory statement and the likely effect on of it on the plaintiff are the most important factors in placing an award of damages higher or lower within the respective categories.
Do note, in defamation lawsuits general damages are at large and are at the discretion of the judge or jury. The onus is on the defendant to mitigate damages. Exemplary or punitive damages will be awarded where the action of the defendant is malicious, high handed or harassing. Damages to reputation are not at large and, accordingly, the plaintiff must prove quantifiable damages before an award will be made.