Defamation has two forms: libel (written words) and slander (spoken words).
For a defamation case, a person must prove:
1. the words at issue were defamatory (meaning they would negatively impact the person’s reputation in the eyes of a reasonable person);
2. the words, in fact, referred to the person complaining about those words; and
3. the words were published (meaning they were written or said to a person other than the person who is complaining about the words).
Generally, the legal way of understanding 1 above is:
“Expressions which tend to lower the reputation of a person in the estimation of right thinking members of society generally or which expose a person to hatred, contempt or ridicule are defamatory.”
If these three elements are proved, damages are generally presumed and the onus shifts to other person to prove a defence to avoid liability.
There are many defences raised by defendants in defamation cases. For example, if the defendant can prove the words were “true”, it usually means liability is avoided. There are also special occasions that offer protection to those who defame others, such as in Court documents (allegations, etc.). There are a number of other defences available, too, some of which are quite legally complicated.
Ontario also has the Libel and Slander Act, which imposes statutory law to defamation. For example, special notice requirements apply if the defamation is published in the media, for example. In addition, defamation in the context of a person’s profession can also be actionable even if specific (monetary) damages cannot be established.
Sometimes, defamation creates a balance between protection reputation and free speech. This often arises in the context of defamatory statements made in the media or sometimes online.
Generally, damages awards in Ontario for defamation cases are somewhat modest, particularly in cases not involving mass, publication through media.
More cases are emerging over defamatory statements made online, particularly through social media and discussion blogs and forums. Those cases tend to be challenging to deal with, including whether the host of the blog or discussion forum should also face liability.
In Ontario, a person may also defend a defamatory claim by proving successfully that the statement was made in the public interest and, if so, liability may be avoided.
Ontario also has adopted legislation about apologizing to others. This legislation does not protect a person from liability, but is intended to try to prevent lawsuits from happening and encourage disputing parties to resolve before a lawsuit. If offers some protection to those who do apologize, too.
Defamation is a fairly specialized legal field. If you feel that you have been defamed, or you are accused of doing so, you should speak to a lawyer qualified and experienced with this area of law. This is a very brief outline about this area of law only, which is quite extensive and often complicated.
