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THE LAW OF DEFAMATION
Umquery among; tfle worfdr. re-gar system , E"ngliSrr commorP' law divides
defamation into two categories:
libel; which covers publication in a form with some
permanence, such. as books or newspapers, and slander, which deals with the more transitory
publication by spoken word or gesture,
The distinction arises from an accident of history, the sixteenth-century
competition for power and jurisdiction between the Ecclesiastical Courts and the Star Chamber.
The Ecclesiastical Courts dealt with defamation, both written and 0~1 as sin, imposing penance
on the wrongdoer. The Star Chamber punished "libel both writt~n and oral, as a crime. By
1855, the civil Courts of King's Bench had inherited the jurisdictiop of both the Star Chamber
and the Ecclesiastical Courts. For the first time, one court had ju~sdiction over all written and
oral defamation. Rather than merging the two, however, the court of King's Bench separated
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written and oral publications into libel and slander, respectively.
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The common law's rather artificial distinction betweeh libel and slander does not
readily lend itself to an easy classification of defamation published! by way of twentieth-century
technology. For instance, are defamatory words spoken but broadPast by radio a slander or a
libel? Similarfy, how are words and images communicated by t$levision to be categorized?
Each province and territory, except Quebec, has enacted its own Ubel and Slander Act.
Defamation Act or territorial ordinance, incorporating the old
common law with minor
modifications to take account of such modem issues. Ontario's LIbel and Slander Act, deems
the broadcast of defamatory words, pictures, visual images, geStures and other methods of
signifying meaning to constitute libel.
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There is no all-encompassing definition of defamation, Gatley on Ubel and
Slander, says that "a defamatory imputation is one to a man's discredtt or which tends to lower
him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his
reputation in his office, trade or profession or to injure his financial credit. Jeremy Williams in
The Law of Defamation in Canada describes defamation more simply as "an invasion of the
plaintiffs interest in his reputation and good name."
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The reputation to be protected is not the one that the plaintiff believes he or she
has, wishes he or she had or even deserves, but rather the one actually held of him or her by
the community in general. Reputation is what others think of you, not what you think of yourself.
For this reason, the defamatory words, to be actionable, must be communicated (published) to
at least one other person. Such publication is an essential element that must be proven by the
plaintiff, unless it occurs in the mass media, in which case the Ubel and Slander Act deems
publication to have occurred, without further proof. Defamation is virtually the only cause of
action where it takes more than two to tango.
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680 Waterloo Street PO Box 2520 London, Ontario
N6A 3V8
Defamation is a strict liability tort The intention of the writer or publisher has no
bearing on the outcome. If the words at issue are capable of bearing a defamatory imputation,
liability will attach whether or not those words were intended innocently. Once published,
particularly in the mass media, words and images take on a life of their own and their author can
no longer control the meaning or meanings that may be attached to them by the recipient.
Fault on the part of the defendant is not necessary to establish liability (except in Quebec),
although fault, if found, will certainly exacerbate the damages that may be awarded,
Defamation as a cause of action is personal to the person aggrieved and may only be
maintained and prosecuted by that person. The cause of action dies with the complainant
Hence, dead cannot be defamed.
ELEMENTS OF A LIBEL ACTION
The law of defamation seeks to balance two often-opposing societal interests:
freedom of speech and of the press on the one hand and the importance of reputation on the
other.
In an action for libel, the plaintiff is required to prove:
(a)
that the libellous statement has been communicated to some person other
than the person of whom it is written (when published through the mass
media this is presumed);
(b)
that the libel refers to him or her (or it, because a corporation too has a
reputation to protect); and
(c)
that the statement is defamatory, that is, that the plaintiffs reputation has
been adversely affected.
In an action for slander, the plaintiff must in addition prove actual damages unless the slander
imputed a crime to the plaintiff or the plaintiff has been defamed in the way of his or her office,
calling or profession.
LEGAL PRESUMPTIONS (REVERSE ONUS)
Once the plaintiff has proven the three essential elements (four in the case
of slander), the law presumes that:
(a)
(b)
(c)
The statement is false;
It was published with malice, that is, without an honest belief in its truth or
recklessly as to its truth, or was published for some ulterior purpose; and
The plaintiff has suffered damage.
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These legal presumptions are often referred to as a reverse onus. Unlike virtually every other
form of civil litigation, which requires the plaintiff to prove his or her case on a balance of
probabilities and requires the defendant to do nothing until such occurs, the law of defamation
deems the plaintiff to have proven his or her case once evidence of the three elements referred to
above has been produced. Unless the defendant displaces the presumptions, the plaintiff will
succeed. This shift in onus places a heavy burden on the defendant, often requiring that a
negative be proven, something which may be difficult, if not impossible, to do.
There are essentially three types of defamatory statements:
(a)
(b)
(c)
A statement that is defamatory on its face by a plain reading of the words
at issue;
A statement which contains a false innuendo, that is, carrying an inference
that possibly may be seen as defamatory only by persons possessing the
necessary contextual knowledge. The particular juxtaposition of words,
phrases, sentences or even paragraphs may give rise to additional
meanings never intended by the author but inferred from the particular
construction of the piece at issue; and
A legal or true innuendo which is not defamatory on its face but becomes
defamatory when it is conjoined with facts or circumstances extrinsic to
the article in question but known to at least some members of the
audience. The innuendo may arise from the use of special language,
technical terminology or slang, or terms of art, which, to people who know
that language, carries local meaning and conveys a defamatory
imputation, although the words would not ordinarily bear that meaning.
DEFENCES
Despite the reverse onus, a defendant in a libel action does have a number of
defences available that provide a fair degree of protection. They include:
1.
JUSTIFICATION: Truth is a complete defence. Malice does not negate this
defence. For the defence to succeed, however, the words must be true in substance
and in fact and according to their natural and ordinary meaning. The court will
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determine the natural and ordinary meaning to be attributed to the words in
question.
FA±R €6MMENT:""This defence is available when the alleged defamatory words
are expressions of opinion on matters of public interest. This defence may be lost
if malice is shown. For such a defence to succeed, the facts being commented
upon must be correctly stated. The words at issue must clearly be an expression
of opinion and not a statement of fact. If there is any doubt whether the statement
is an expression of opinion or a statement of fact, the law will deem it to be a
statement of fact. In such case, the fair comment defence will not be available.
PRIVILEGE: Privilege is either absolute or qualified. It is the occasion upon
which the communication is made that is privileged, rather than the
communication itself. A privilege defence will protect the writer/publisher even
when the words at issue are defamatory. The occasions when such a defence
apply are those in which public policy dictates that the protection of private
reputation must give way to the greater societal good.
2.
3.
There are only a few circumstances where absolute privilege attaches. It
extends to the publication of words used in the course of legal or legislative
proceedings, statements made between executive officers of government and
communications between lawyers and clients. Malice will not defeat the privilege
inherent in these cases. All other forms of privilege are qualified in that they may
be defeated by malice.
Qualified privilege at common law attaches to those statements made in the
protection of an interest or the performance of a duty and requires a reciprocity
of duty and interest between the person publishing the statement and the person
or persons receiving the statement. If published too widely, the defence is lost.
As SUCh,this defence, in its common law form, is of little or no use to authors
who communicate with the public at large, except where proceedings of
Parliament, the legislatures or quasi-legislative bodies are involved.
Qualified privilege has been extended by statute to protect the media. Under the
Ontario Ubel and Slander Act, statutory qualified privilege applies to the media's
reporting of court proceedings and a wide range of public and quasi public
proceedings.
INNOCENT DISSEMINA nON: This defence does not apply to the author or
writer but is meant to apply to any person in the chain of publication who
innocently and without knowledge as to the contents was involved in distributing
the offending words. This defence would apply to the newspaper carrier and
others who have no editorial or decision-making function in the distribution
process.
4.
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