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Canadian Libel, Slander, and Defamation of Character Law.

Themis CLS

Slander

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Defamation is written or spoken injury to a person or organization's reputation.

Libel is the written act of defamation. Slander is the oral act of defamation.

Defamation:
An attack on the good reputation of a person, by slander or libel.

Libel:
Defamation by writing such as in a newspaper or a letter.

Slander:
Verbal or spoken defamation.

A central theme through the ages has been that the reputation of the individual is of fundamental importance. Professor R. E. Brown writes in The Law of Defamation in Canada (2nd ed. 1994), at p. 1-4:

(N)o system of civil law can fail to take some account of the right to have one's reputation remain untarnished by defamation." Some form of legal or social constraints on defamatory publications "are to be found in all stages of civilization, however imperfect, remote, and proximate to barbarism.

 

Defamation, libel and slander laws are the responsibility of the provinces.


Proving Defamation and Assessing Damages

If one can prove that one has been libelled, and there is no defence for the loss of reputation, the law assumes damages and fixes an amount as compensation. The plaintiff does not have to prove damages for actual financial loss. However, in cases of slander, the plaintiff must prove actual financial loss before damages can be awarded. Slanderous statements are oral and therefore, do not have as great an impact as libel which is writtern defamination. In many Canadian Provinces libel and slander have been combined and the distinctions have become blurred.

 

Defences

The most common defences, if someone sues you for defamation, are:

  • Truth - A statement may have hurt your reputation, but if it was true then anyone can say it and have a good defence against a lawsuit.
  • Absolute privilege - There are two main examples of this defence:
    1. statements given in evidence at a trial, and
    2. statements made in Parliament.

      This defence also allows the fair and accurate reporting of those statements in the media, like newspaper reports of a trial. People must be able to speak freely in our justice and political systems, without worrying about a lawsuit when they do so.
  • Qualified privilege - If your former employee gave your name to an employer as a reference, the potential employer may call you. You say: "He was unreliable poor at his work and I would not hire him again". As long as you acted in good faith, the defense of qualified privilege protects you if the former employee sues you for defamation. You had a moral duty to give your honest opinion and the caller had a legitimate interest in hearing it.
  • Fair comment - We all are free to comment, even harshly, about issues of public interest, as long as our comments are honest, not malicious, and based on fact.

 

The following are some "Do's" and "Don't's":

  • State the facts, and then state your opinion separately. This keeps things clear in your mind.
  • Bad: "My neighbour John Smith is a stinking lush." This is defamatory: an unproven, malicious ("stinking" and "lush" instead of "alcoholic") statement about a private individual.
  • Better: "My Member of Parliament, John Smith drank 10 glasses of whiskey last night at The Local Pub. In my opinion he's an alcoholic." The proof is a bit hazy – getting drunk once does not prove alcoholism – but an MP is a public figure with less protection than John Smith. You have clearly separated fact from opinion, and there is no particular evidence of malice.
  • Best: "My Member of Parliament, John Smith, drank 10 glasses of whiskey last night at The Local Pub. I wouldn't be surprised to learn he's an alcoholic." This is entirely fact, with no clear evidence of malice, about a public figure.

 

What is not defamation:

  • Generally, a statement made about an undefinable group of people or organizations cannot be defamation. Take, "Used Car sales people are crooks." It's defamatory enough, but there is no identifiable victim.
    • "Most of the Used Car sales people at Smith Car Sales Company are crooks" is getting closer to the line, but it is still hard to define the victim.
    • "Smith Car Sales Company is a crooked company." Now you have a victim; Smith Car Sales Company and a possible defamation action.

 

 

 

 

 

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