Myth or fact?
These days, it’s easier than ever to make your thoughts and feelings public. While that’s a great thing in some ways, it can also lead to ruffled feathers. And in serious cases, it can lead to claims of defamation. Learn your rights and the steps to take if you’ve been accused of defamation.
What you should know
Defamation is communication that tends to lower a person’s reputation
Defamation is communication about a person that tends to hurt their reputation. It causes the people who read or hear the communication to think less of the person.
The words themselves can be defamatory. For example, if you call someone a thief, it’s very likely defamation (unless you can prove it’s true).
Or the general impression the words create can be defamatory. For example, if you post to social media suggesting that your ex-spouse is a sexual predator, it could be defamation.
BC law sets out certain defences to claims of defamation. If a person accused of defamation can raise one of these defences, they’re shielded from liability. Below, we explain each of the defences. In addition, the protection afforded by the law of defamation may interfere with freedom of expression.
Defamation can also be a crime under the Criminal Code, but this is rare. The information below is about civil, not criminal defamation.
The law recognizes two forms of defamation
Under BC law, defamation is split into two categories: libel and slander.
If defamation is written or otherwise recorded, it’s called libel. Libel is defamation that leaves a footprint. This includes:
statements published on social media or other online platforms, such as Facebook, Twitter, or YouTube
statements in a newspaper, letter, or email
statements on a TV or radio broadcast
Defamation that leaves no permanent record is called slander. Normally this means it’s been said aloud. It can also be a hand signal or other nonverbal gesture.
Slander cases are harder to prove and are less common.
The law treats libel and slander differently
With a libel claim, the assumption is that the person asserting defamation has suffered a financial loss. If their claim is successful, they’re entitled to compensation (called damages).
This isn’t the case with slander. To establish slander, the person who started the claim must show they suffered a financial loss. That is, unless the communication:
accuses them of a crime and is to someone other than the police
accuses them of having a contagious disease
makes negative comments about them in their work, profession, trade, or business
accuses them of adultery
There are three elements to a claim for defamation
To establish a defamation claim, the person accusing you must show that:
the communication was defamatory (that it would tend to lower their reputation in the eyes of a reasonable person),
it referred to them, and
it was communicated to at least one other person.
Making a personal insult or remark isn’t grounds for a defamation claim. For example, calling someone a nasty word in an email usually isn’t enough to establish defamation. If you send an email to all of your co-workers accusing a colleague of criminal conduct, that’s another story.
If your accuser proves the three elements above, the onus shifts to you to put up a defence. Let’s take a look at each of the six defences in turn.
You could be liable if you played a part in the communication
You may face liability even if the defamatory statements didn’t come directly from you. If you had a hand in communicating them in any way — like authorizing, encouraging, or promoting them — you may be liable.
Defences to a defamation claim
Defence of truth or justification
A statement may hurt a person’s reputation. But if the statement is true, that’s a complete defence to a defamation claim. To use this defence, you must prove that the statement is more likely true than not.
Defence of fair comment
We’re all free to comment — even harshly — about issues of public interest, as long as we are clear that our comments are:
expressed in a way that shows they are opinion, not fact,
based on facts that can be proven, and those facts are either stated or otherwise known to readers or listeners, and
not made maliciously.
For example, imagine a politician who says they support equality and equal rights, but are opposed to same-sex marriages. A newspaper columnist may write that the politician is hypocritical. If the politician sues the columnist for defamation, the columnist may put forward the defence of fair comment.
Defence of qualified privilege
A defamatory statement made in performing a public or private duty can be protected by qualified privilege. The protection only applies to statements made to people with an interest in receiving the statement.
For example, say you operate a business and you fire one of your workers for misconduct. If you provide a bad reference to a new potential employer of that worker, you may be protected by qualified privilege. (That is, assuming you honestly believe what you say in providing the bad reference.)
The duty can be legal, social, or moral. The test is whether a person of ordinary intelligence would think you owed it to that third party to tell them the unvarnished, unflattering truth.
There are no exact rules on when qualified privilege arises. It depends on the facts of each case. But if a statement is made under qualified privilege, the defence applies even when very strong language is used. Or if the statement is false.
For statements made on the internet, it’s hard to rely on qualified privilege. That’s because, generally, statements on the internet are made to the public at large. They aren’t limited to people who have an interest in receiving the statement — unless it’s published on a members-only site not open to the public.
Defence of absolute privilege
In some situations, freedom of speech without fear of consequences is critical. The defence of absolute privilege provides immunity from a defamation claim in these situations:
Statements made in a civil lawsuit. This covers statements made in court, in court filings, and examinations for discovery.
Statements made in a quasi-judicial proceeding. This includes hearings before a regulatory body or tribunal, like the Human Rights Tribunal.
Statements made in Parliament or the provincial Legislature.
Defence of responsible communication on matters of public interest
Journalists and others should be able to report statements and allegations — even if not true — if there’s a public interest in the message getting out. This defence, which looks at the whole context of a situation, can apply if:
the news was urgent, serious, and of public importance, and
the journalist used reliable sources, and tried to get and report the other side of the story.
The courts have defined the term “journalist” widely to include bloggers and others publishing material of public interest in any medium.
Defence of innocent dissemination
The defence of innocent dissemination is important in the internet era. Generally, a person who takes part in publishing a defamatory statement is responsible for its publication. This includes a writer, editor, printer, and distributor. But a person who acts only as a distributor may be able to rely on this defence if they:
didn’t know they were distributing a defamatory statement,
weren’t negligent in not knowing, and
immediately removed the statement from their website or distribution when they found out about it.
Work out the problem
Step 1. Stay calm
If someone accuses you of defamation, your first reaction may be to push back. Especially if you consider your statements to be justified. But in most cases, retaliating isn’t helpful. In fact, it could cause serious problems for you if the matter ends up in court.
Good behaviour may lead to a lower damages award
When someone starts a legal action for defamation, they’re called the plaintiff. The person accused of defamation is called the defendant. If the plaintiff’s claim is successful, the defendant will be ordered to pay the plaintiff to compensate them for their loss (called damages). In deciding on a damages award, the judge will look to a number of factors. One of the key factors is the defendant’s behaviour since the defamatory statements were made.
If the judge sees that you stayed quiet after the initial statements were made, this will tend to reduce the damages award. But if you got into a nasty back-and-forth with the plaintiff, it’s quite possible you’ll end up paying more. Moral of the story: keep a cool head and avoid a knee-jerk reaction.
Step 2. Consider retracting your statement or apologizing
Sometimes, taking back what you said or offering an apology will be enough to resolve the problem. This might involve removing the offending post if it was made on social media or an online forum. Maybe you posted something in the heat of the moment, and you’ve come to regret it. Or maybe you’ve looked at the situation from another angle and have changed your mind. Whatever the case, this is one of the most effective steps you can take to put out the fire.
Retracting your statements or apologizing may lead to a lower damages award
A factor a judge will look at in deciding on a damages award in a defamation lawsuit is whether the defendant retracted their statements or offered an apology. If you can show you took back what you said, removed it from the internet, and made an effort to apologize to the plaintiff, it’s likely you’ll pay less in damages if the matter goes to court.
Step 3. Get legal advice
If the person accusing you threatens to take legal action, it’s a good idea to get legal advice. The law of defamation can be tricky. A legal professional can help you determine the likelihood that the claim against you will be successful. They may also help you assess whether there are grounds for you to raise a defence.
We offer some options for free or low-cost legal advice.
Who can help
If things get to the point where you need someone to help, there are options for free or low-cost legal help.