Suing for Slander: A Brief Look at Defamation Law
Updated: Jan 30
The tort of defamation refers to a legal cause of action that arises when a false statement is made about an individual, group, or entity that causes harm to their reputation. Defamation can be in the form of libel (written) or slander (spoken). Defamation operates essentially the same way whether the plaintiff is a natural person or a corporation.
Reputation in law may be conceived in three different ways: reputation as honour (a function of one's position or status in society), reputation as property (as a product of labour and skill), and reputation as dignity (akin to people's sense of their own worth). In a defamation suit, the court will try to balance the competing interests of protecting people's reputation and expression. Canadian courts recognize the importance of not chilling speech on matters of public concern.
The following are key considerations for a plaintiff seeking to prove defamation:
1. Elements of Defamation: To prove defamation, the following elements must be met:
A false statement was made
The statement was published to a third party
The statement caused harm to the person's reputation, meaning that it would tend to make a right-thinking person think less of the plaintiff
The statement was not protected by privilege or justification
2. Burden of Proof: The person making the defamatory statement has the burden of proving that the statement is true. If the statement cannot be proven true, it is considered defamatory.
3. Damages: Human plaintiffs may be awarded specific damages, general damages for both loss of reputation and hurt feelings (including aggravated damages), and punitive damages. Corporate plaintiffs may only be awarded specific damages, general damages for loss of reputation but not hurt feelings, and punitive damages.
Proof of liability entitles the plaintiff to more than nominal damages since damages are presumed. No proof of loss is required, the presumption of damages is irrebuttable - neither proof of actual harm to reputation, nor proof of resulting financial loss.
4. Statute of Limitations: The statute of limitations for defamation is two years from the date of the alleged defamatory statement. This means that a lawsuit must be filed within two years of the date of the statement.
5. Defences: There are several defences to defamation, including:
Truth: If the statement is true, it cannot be defamatory.
Fair Comment: If the statement is a fair comment on a matter of public interest, it cannot be defamatory.
Qualified Privilege: If the statement was made in the context of a privileged communication (such as between a lawyer and client), it may not be defamatory.
In conclusion, it is important to be aware of the laws surrounding defamation. If you believe that you have been defamed, it is important to seek legal advice as soon as possible to understand your rights and options.