A Primer On Defamation27-Jul-18
By Sarah Levine
Many people are likely familiar with terms like defamation, libel, or slander from hearing them in the media or on television. But few people are aware of the nuanced differences between these terms. More importantly from a legal perspective if you find yourself in a situation where you feel your reputation has been harmed, you need to understand what a successful lawsuit for defamation really entails.
What is defamation?
In Alberta, we have legislation called the Defamation Act (the “Act”) which sets out the scope of defamatory statements, the possible damages an injured party can recover, and the potential defences or mitigating factors which a party that made a defamatory statement can raise.
Defamation is the broad term for a communication made about an individual that harms their reputation. Libel and slander are both types of defamation. Libel is a false defamatory statement that is made in writing, while slander is a false defamatory statement that is communicated orally.
A statement is defamatory if it would cause an individual who reads or hears it to think less of the person about which the defamatory statement was made. Implicit in this is the requirement that the defamatory communication must be made to other people, not just to the person it is about. If you feel that your reputation has been injured, you have the option of commencing an action against the maker of the defamatory statement, but it is critical to understand at the outset what is needed to convince a court that a harmful defamatory statement has been made, and to assess whether it is worth the time and cost of pursuing such a claim.
Essential elements of a defamation action
To begin, it is important to appreciate that defamation is very difficult to successfully prove. The law protects parties from injurious remarks made about their, or their business’, reputation, but it will not protect parties from personal insult made directly to them that simply causes them upset. The courts must balance competing interests in determining whether or not to make a finding that a statement is defamatory. In particular, a court must balance the interests of the party who claims to have been defamed, with the rights of the party that made the statement to exercise free speech.
In making a case for defamation, the person claiming damages must also be able to establish and quantify the damages they say they have suffered. In the case of libel, a court may award general damages (that is, damages not tied to a quantified and specific loss) for loss of reputation if it is satisfied that defamation has occurred. Certain factors will come into play in determining the size of the general damages award. These include the extent to which the defamatory statement was published, and the effect this had on the defamed party’s reputation. If it can be established that earnings or profits were lost as a result of the defamatory statement, the court may award special or pecuniary damages (that is, damages specific to the loss suffered) flowing from the defamatory statement as well.
In the case of slander, it is only actionable (that is, capable of being the subject of a lawsuit) if the party can prove a pecuniary loss that justifies an award of special damages. However, there are some exceptions to the normal requirement of needing to prove a material or financial loss in order to be successfully awarded damages for slander. If the defamatory statement involves the injured party publicly being accused of a crime, of having a contagious disease, of being an adulterer, or involves harmful remarks about one’s occupation, then it is unnecessary to establish a financial loss resulting from the slanderous remark in order for it to be actionable.
Things to keep in mind if commencing an action for defamation
If you feel that you have suffered reputational harm as a result of a defamatory statement, then there are some basic procedural things to keep in mind.
First and foremost is the statutory limitation period in the Province that governs the timeline within which one can commence an action for an injury suffered. In Alberta, our Limitations Act provides parties with two years from the date on which they first knew or ought to have known an injury had occurred to commence an action. In this case, one would have to sue within two years from the date the defamatory statement was made or published.
Another critical consideration is whether or not it is worth the time and great expense involved in pursuing an action for defamation. Unless there has been serious financial hardship suffered as a result of harm to one’s reputation, it is likely not worth pursuing.
Defences to a defamation lawsuit
If you find yourself the defendant in a defamation lawsuit, or if you are trying to assess the potential success of your own defamation action, it is helpful to be aware of the possible defences that can be raised. The most commonly raised defences are briefly canvassed below.
While a defamatory statement may have caused harm to one’s reputation, if it is true, then that is a complete defence against a defamation allegation.
- Fair comment:
Similarly, individuals have the right to comment freely about issues of public interest. It would be unfair and against the public interest to restrict parties, such as journalists, from being able to raise points about matters in the public interest to their readership. The defence of free or fair comment can be raised so long as the party making the allegedly defamatory statement is clear that the comment is the author’s opinion, is not made with malice, and is premised on facts that can either be proven or are stated or otherwise known to the audience.
- Absolute & qualified privilege:
These privileges tie in to earlier comments made about the right to free speech, but in the context of judicial proceedings. Parties that make what would usually be considered to be defamatory statements in the course of a civil lawsuit, a quasi-judicial proceeding or a criminal proceeding, are protected from any damages for making such statements on the grounds of absolute privilege. This is to encourage that the ends of justice are met, which involves allowing people to speak freely in judicial proceedings without fear of being sued so that the truth can be discovered. Qualified privilege is grounded in the same reasoning, but protects those who make defamatory statements in the course of performing a public or private duty. The test for whether qualified privilege should apply is whether a person of ordinary intelligence would think a duty existed to communicate the information to the audience it was made to.
- Innocent dissemination:
If a party disseminates a defamatory statement without knowing that what they were distributing was defamatory, and, upon learning it was a defamatory statement, immediately remove it from where it was distributed, they can rely on this defence. This scenario is relevant in the age of sharing news articles or other statements on various internet and social media platforms. It would only be the party who disseminates the information, in other words forwards it along or shares it, as opposed to the actual author or publisher of the information, who could rely on this defence.
- Responsible communication on matters of public interest:
Recent developments in the law of defamation have begun to recognize a defence for reporters, or anyone who publishes materials, that protects their statements or allegations, even if untrue, if it is in the public interest to communicate such information to a broad audience. This is a contextual defence that would consider the content of the alleged defamatory statement and the context within which it was made. If it were found that the statement made was defamatory but the matter communicated about is of public interest and the party making the statement acted responsibly and with proper diligence, the defamatory statements will not attract liability.
One of the most recent cases in Alberta that considered this defence, as well as those of justification and qualified privilege, was handled by McLennan Ross in 2016. This decision gave rise to the largest individual defamation award granted in Alberta ($150,000 in general damages) for the print publication of a defamatory article, and a further $50,000 for continuing online publication of the defamatory article. The decision illustrates that huge windfalls should not be expected in suing for defamation. While a global award of $200,000 may seem like a large amount, it must be borne in mind that this was an exceptional award, the highest ever awarded in the Province, and that the significant legal and expert costs associated with going to trial can greatly offset the net amount actually recovered.
While an apology for a defamatory statement is not a defence on its own, it can act as a mitigating factor against any possible damages that may be ordered against the party that made the statement.
If you feel that someone has made or published statements about you that are defamatory in nature and you feel that this has injured your reputation, you have a right to sue them and pursue an award of damages for the losses you have suffered as a result. While hurt feelings or jabs at one’s reputation are an unfortunate thing to experience, defamation is a cause of action that must be carefully considered before being pursued. Given the significant time and legal fees involved in a lawsuit, and the array of defences that can be raised against allegations of defamation in the interest of protecting competing interests, serious thought should be given to the factual, evidentiary, and financial factors at play in determining whether or not it makes sense to commence an action for defamation.
If you feel that you might have a case for defamation, or if you yourself have been sued for defamation, please contact a member of our commercial litigation practice group, who would be happy to advise you with respect to the action.