Overview of Defamation Law in Ontario
What is defamation law?
Defamation law focuses on the protection of an individual’s reputation from harm. Within this law, two competing interests are weighed against each other: the protection of an individual’s reputation and the right to freedom of speech. The law of defamation is informed by both legislation and case law. This area of law is constantly evolving because of our changing understanding of what reputation and freedom of speech constitute. It is also developing because of the expanding number of ways in which we can disseminate information, such as by using social media, emails, or messaging applications.
What is libel/slander?
Libel and slander are the two different types of defamation. In Ontario, the ruling legislation guiding these two categories is the Libel and Slander Act. References to “words” are understood to include references to visual images, pictures, sounds, signs and other means of signifying meaning.
The Ontario act is not intended to be an inclusive definition of libel. Libel refers to defamatory words in writing or other lasting form that harm the reputation of the plaintiff. These words are often on permanent record and accessible to the public. Under the Ontario act, there are definitions and special rules for newspapers and broadcasting, including time limitations and provisions for apologies.
Slander refers to defamatory words that harm the reputation of the plaintiff. Unlike libel, these words tend to be impermanent spoken words.
What is required to prove the plaintiff has been defamed?
There are 3 elements that must be met to prove that the defendant has defamed the plaintiff:
- the defamatory statement refers to the plaintiff;
- the defamatory statement was made by the defendant and disseminated to the public; and
- the defamatory statement harmed the plaintiff’s reputation in the eyes of a “reasonable person.”
If the claim successfully fulfills all 3 elements, the defendant can rebut the charge by successfully invoking a defence.
What are the defences?
The defendant has a number of potential defences available to prove that their statement is not defamatory. There are 5 established defences:
The defendant can rebut a charge of defamation by showing that the statement about the plaintiff is true.
The defendant can invoke this defence if they published a fair and accurate report on a current court proceeding. However, the defendant must also have provided a reasonable explanation or a contradictory statement about the report in the newspaper/broadcast.
Any statements made by individuals in the course of Parliament’s functions (“parliamentary privilege”) is also protected from charges of defamation.
The defendant can invoke this defence if their report falls under any of the following 4 categories outlined below. These reports must not have been published or broadcasted maliciously.
- A fair and accurate report about the proceedings of a legislative body, administrative body, commission of inquiry, or organization—any of which represent or are constituted by any public authority in Canada—that are open to the public.
- An accurate and fair report about a lawful meeting whose purpose was to discuss a matter of public interest – whether the meeting was open to the public or not.
- A fair and accurate synopsis of any document made for the public by a legislative body, administrative body, commission of inquiry, or organization—any of which represent or are constituted by any public authority in Canada—OR made for the public by a lawful meeting whose purpose was to discuss a matter of public interest.
- A fair and accurate report on the findings or decision of an association (that promotes art, science, religion, learning; public game, sport, pastime; trade, business, industry, or profession) about one of its members. The association must have adjudicative powers over its members.
The defence of absolute/qualified privilege does not apply to material that is considered indecent, seditious, or blasphemous. It also does not apply to reports/broadcasts that are not of public benefit or public interest.
The defence of fair comment protects the expression of a defendant’s opinion as long as the defendant did not publish the statement maliciously, the comment is based on proven facts, and the comment involves a matter of public interest. The opinion must be evidently the defendant’s opinion—rather than a statement of fact reported by the defendant.
The defence of fair comment can be used even if all the facts published in the report have not been proven—as long as the opinion is a fair comment on the facts that have been proven.
This defence can also be used if the defendant published another individual’s opinion—even if both, either, or neither individual held the opinion—as long as a person can honestly hold that opinion.
To invoke the responsible communication defence, the defendant must show that the publication was a matter of public interest and the defendant tried to verify the allegations in the publication diligently. There are other factors that affect the success of this defence, including the seriousness of the allegation, the public importance of the matter, and the urgency of the matter.
Public interest can include any matter that stimulates the public’s interest or will affect the public.
The defence of responsible communication goes beyond traditional media organizations—it also covers all public interest publishers including Twitter and Facebook.
What are the time considerations for defamation actions?
For the plaintiff to begin a cause of action for defamation, they must adhere to certain time considerations. Each jurisdiction has their own time considerations for defamation actions.
For newspapers and broadcasts originating from Ontario, the plaintiff must give notice to the defendant about the statement within 6 weeks of learning about the existence of the defamatory statement. The plaintiff must also bring a lawsuit within 3 months of learning about the libel.
If the defamatory content was not in a newspaper/broadcast (e.g. social media, emails), then the plaintiff does not need to give notice to the defendant about the statement within a certain timeframe. For defamatory content reported in publications that are not considered newspapers/broadcasts, the plaintiff has 2 years to bring a lawsuit to the defendant after learning about the libel.
What if the defendant apologizes?
The defendant may plead for the reduction of damages by arguing that they published the libel without malice or negligence and showing that—before the lawsuit began or the earliest opportunity afterwards—they broadcasted/inserted in the newspaper a full, sincere apology for the libel.
In the case of a newspaper, if it is not published weekly, then the defendant has the opportunity to publish their apology in another newspaper chosen by the plaintiff.
What are some other considerations?
If an individual hyperlinks defamatory material in their report, they are not liable for defamation. Hyperlinks are normally considered content-neutral references that redirect the public to another source. If the other source is defamatory, it is the person who published the defamatory material itself that is liable for libel. However, if an individual hyperlinks the material in a way that “actually repeats the defamatory content,” then this individual is liable for defamation as well.
Third Party Intermediaries
Third Party Intermediaries are social media platforms, Internet service providers, domain name registrars or hosts, content delivery networks, search engines etc. These parties may be held liable for defamation depending on their awareness of the defamatory content and their ability to control the defamatory content. They may also be held liable by omission if the court rules that a third party intermediary was aware of the defamatory content but did not take steps to take down the content within a reasonable time frame.
In addition, if a defamer publishes a defamatory comment online, the third party intermediary platform (e.g. Facebook, Twitter, Instagram) does not need to give a notice of complaint of the defamatory material to that publisher, nor are they obligated to take down the defamatory content if the publisher does not respond. It may be difficult to succeed in court against internet service providers (e.g. Bell, Rogers, TekSavvy, Telus), since they may not constitute publishers for the purposes of liability, or alternatively, they may invoke the defence of innocent dissemination.
If the defendant is in a different jurisdiction from the plaintiff, the plaintiff will initially decide in which jurisdiction to sue. However, when the lawsuit begins, the court will decide whether the defamation claim should be heard. The appropriate jurisdiction will be determined based on whether or not there is a substantial connection between the defamation claim and the jurisdiction, as well as on other factors.
DISCLAIMER: This article is not a substitute for legal advice. Defamation is a complex and technical area of the law and a creator should seek legal advice in any particular situation if uncertain whether words they intend to publish may be defamatory.