Defamation law protects an individual's reputation and good name. A communication is defamatory if it is a false statement about a person or place that results in damage to their reputation in the eyes of a "right-thinking" 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).
Words can be defamatory by creating a false negative impression. For example, if you post to social media suggesting that your landlord is a sexual predator, it could be defamation even if you did not make a direct accusation.
To minimize the risk of defamation you must be fair and accurate in your comments and you should not make your comments with malicious intent.
There are defenses to claims of defamation. If a person accused of defamation can argue one of these defenses, they might be shielded from liability.
Defamation is typically split into two categories: libel and slander.
If defamation is in the form of written words, pictures, statues and films, it's called libel. Libel is defamation that leaves a footprint. This includes:
Defamation that leaves no permanent record is called slander. Normally this is something said aloud but not written or recorded. 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.
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.
There are three elements to a claim for defamation
To establish a defamation claim, the person accusing you must show that:
If your accuser proves the three elements above, the onus shifts to you to put up a defence. A Defendant typically has six main defenses.
Most common defenses 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:
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 by people having an interest in making the statement to people with an interest in receiving the statement.
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:
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 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:
Please note:
Defamatory statements that are nevertheless defensible may still attract liability if the defendant was motivated by malice. Criminal Code:
Defamation can also be a crime under the Criminal Code. The Criminal Code provides that:
298 (1) A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published. Consult a lawyer
If you have concerns about the comments you wish to post to Rentorium you should consult a lawyer to determine whether your comments may be defamatory.