Defamation & Reputation Management

Understanding Defamation in Canada

Defamation law in Canada safeguards individuals and organizations against false statements that unjustly harm reputation. Rooted in the principle that reputation is integral to human dignity, the law recognizes both libel (written or published defamation) and slander (spoken defamation). Whether statements appear in a news article, blog post, online review, or social media thread, the same core legal test applies: the words must be published to a third party, refer to the plaintiff, and tend to lower the plaintiff's reputation in the eyes of a reasonable person.

What is Defamation?

Defamation occurs when a false statement is communicated to at least one person other than the subject of the statement, and that statement causes reputational harm. The statement must be more than merely offensive or insulting—it must lower the person's standing in the community or cause others to shun or avoid them.

Canadian courts have consistently held that reputation is a fundamental aspect of personal dignity and worth. The law therefore provides remedies to those whose reputations are unjustly damaged, while also protecting freedom of expression through robust defences.

Libel vs. Slander

Canadian law distinguishes between two forms of defamation:

• Libel refers to defamation in a permanent form, such as written text, photographs, videos, or recordings. Online posts, articles, and social media content typically constitute libel.
• Slander refers to defamation in a transient form, such as spoken words or gestures. Slander generally requires proof of special damages (actual economic loss), unless it falls into certain categories such as allegations of criminal conduct or professional incompetence.

The distinction matters primarily for procedural purposes, as libel is actionable without proof of damage, while slander typically requires such proof.

Key Defences to Defamation

Once publication is established, falsity is presumed, placing the burden on defendants to justify or defend the statement. Key defences include:

• Truth (justification) — A complete defence if the statement is substantially true. The defendant must prove the essential truth of the allegation, though minor inaccuracies will not defeat the defence.
• Fair comment — Protecting opinions honestly held on matters of public interest. This defence requires that the opinion be based on true facts, relate to a matter of public interest, and represent an honestly held view that any person could hold.
• Qualified privilege — Covering communications made in good faith on occasions where the speaker has a duty or interest to make the statement, and the recipient has a corresponding interest in receiving it. This includes statements in legal proceedings, reports to authorities, and certain workplace communications.
• Responsible communication on matters of public interest — A modern Charter-based defence protecting journalism and other responsible reporting. This defence, established in Grant v. Torstar Corp. (2009 SCC 61), recognizes that the public has an interest in receiving information on matters of public concern, even when that information later proves to be false, provided the publisher acted responsibly in gathering and verifying the information.

Defamation in the Online Age

The rise of social media and user-generated platforms has transformed the law's practical application. Courts now routinely address issues such as anonymous postings, mass republication, and cross-jurisdictional access. The digital environment presents unique challenges for reputation management, as harmful content can spread instantly to a global audience and remain accessible indefinitely.

Digital Publications and Mass Republication

In Barrick Gold Corp. v. Lopehandia, [2004] O.J. No. 2329 (C.A.), the Ontario Court of Appeal recognized the global and enduring harm of online defamation, emphasizing that digital communications are "instantaneous, seamless, interactive, blunt, borderless, and far-reaching." This decision acknowledged that the potential for harm from internet publications far exceeds that of traditional media.

Modern cases, such as Pritchard v. Van Nes (2016 BCSC 686) and Clancy v. Farid, 2023 ONSC 2750, illustrate how viral falsehoods can destroy reputations overnight. Courts have responded with significant general and punitive damages, and in certain circumstances, injunctions or takedown orders requiring the removal of defamatory content.

Platform and Intermediary Liability

Platforms and intermediaries occupy a complex position in defamation law. While they facilitate the publication of content, they are not automatically liable for third-party posts. However, once they have notice of defamatory content and fail to remove it within a reasonable time, they may become liable as publishers.

Canadian courts have increasingly ordered platforms to remove content or provide information about anonymous users. The balance between protecting reputation and preserving free expression remains a central challenge in this area.

Hyperlinks and References

The Supreme Court's ruling in Crookes v. Newton, 2011 SCC 47, confirmed that hyperlinks are not publications in themselves. The Court emphasized that hyperlinks merely reference, rather than republish, defamatory material. This distinction is important because it means that simply linking to defamatory content does not make the linker liable for defamation—the link functions as a neutral reference tool.

However, if the hyperlink is accompanied by text that adopts or repeats the defamatory allegations, or if the context makes clear that the person endorses the linked content, liability may still arise. The key question is whether the defendant has taken responsibility for the defamatory content, not merely whether they have provided a means of accessing it.

Injunctive Relief and Urgent Remedies

Interlocutory injunctions in defamation matters are extraordinary and granted sparingly, reflecting the balance between protecting reputation and upholding freedom of expression. A plaintiff must show that the impugned words are manifestly defamatory, impossible to justify, and cause ongoing harm. Only in the clearest of cases will speech be restrained prior to trial.

Interlocutory Injunctions

To obtain an interlocutory injunction, the plaintiff must meet the three-part test established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:

1. There is a serious issue to be tried.
2. The applicant will suffer irreparable harm if the injunction is not granted.
3. The balance of convenience favours granting the order.

In defamation cases, courts require a very strong case before restraining publication. The plaintiff must demonstrate that the words are plainly defamatory and that no defence could succeed. Even then, courts are reluctant to impose prior restraints on speech.

Norwich Orders

Norwich orders compel platforms or internet service providers to disclose identifying information about anonymous users. Named after the English case Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), these orders are available when:

• The plaintiff has a bona fide claim
• The person against whom the order is sought is involved in the wrongdoing
• The person has information that would help identify the wrongdoer
• There is no other practical way to obtain the information

Norwich orders are commonly used to unmask anonymous posters on social media platforms, forums, and review sites. The court must balance the plaintiff's interest in pursuing their claim against the poster's interest in anonymity and freedom of expression.

De-Indexing Orders

De-indexing orders direct search engines like Google to remove specific URLs from search results. While search engines are not generally liable for indexing third-party content, courts have found that continued indexing after a finding of defamation perpetuates the harm.

De-indexing orders are particularly valuable because they reduce the visibility and accessibility of defamatory content, even when the content itself cannot be removed (for example, if it is hosted outside Canada's jurisdiction). These orders recognize that in the digital age, findability is nearly as important as publication itself.

Anton Piller Orders

Anton Piller orders allow for the preservation of digital evidence at risk of destruction. Named after Anton Piller KG v. Manufacturing Processes Ltd., [1976] Ch. 55 (C.A.), these orders are granted in exceptional circumstances where there is strong evidence that the defendant possesses critical evidence and is likely to destroy it if given notice of the claim.

In defamation and reputation management matters, Anton Piller orders may be used to preserve electronic records, social media posts, or other digital evidence before they can be deleted or altered.

Injurious Falsehood and Related Economic Torts

While defamation protects personal and professional reputation, the related tort of injurious falsehood addresses malicious false statements about property, products, or business interests that cause economic loss. This includes false reports that drive away customers, undermine investor confidence, or prompt regulatory investigations.

What is Injurious Falsehood?

Injurious falsehood (also called trade libel or slander of goods) is a distinct cause of action that protects economic interests. Unlike defamation, which focuses on damage to reputation, injurious falsehood addresses financial harm caused by false statements about a person's business, property, or goods.

To succeed in an injurious falsehood claim, the plaintiff must prove:

• The statement was false
• It was published maliciously (with knowledge of its falsity or reckless indifference to truth)
• It caused actual pecuniary loss

Malice and Pecuniary Loss

Unlike defamation, injurious falsehood requires proof of both malice and actual financial loss. Malice means the defendant knew the statement was false or was recklessly indifferent to its truth. Pecuniary loss must be specifically proven—generalized claims of reputational harm are insufficient.

In Cana International Distributing Inc. v. Standard Innovation Corp., 2016 ONSC 7197, aff'd 2018 ONCA 145, the court differentiated between reputational injury (defamation) and specific financial losses caused by a false report to Health Canada (the latter forming the basis for injurious falsehood). This case illustrates how a single false statement can give rise to both defamation and injurious falsehood claims, each requiring different proof.

Product Disparagement

Product disparagement is a form of injurious falsehood that involves false statements about the quality, characteristics, or legality of goods or services. Common examples include:

• False claims that a product is unsafe or defective
• Misleading statements about the origin or composition of goods
• False allegations that a competitor's product infringes intellectual property rights
• Untrue reports to regulatory authorities that cause investigation or recall

The remedy for injurious falsehood includes damages for proven financial loss, as well as injunctive relief to prevent continued publication of the false statements.

Invasions of Privacy and Reputation

Closely tied to modern reputation management are privacy torts, particularly intrusion upon seclusion and public disclosure of private facts. Privacy and reputation often intersect, as the unauthorized publication of private information can both violate privacy rights and damage reputation.

Intrusion Upon Seclusion

Following Jones v. Tsige, 2012 ONCA 32, Ontario recognizes a common law right of action for intrusion upon seclusion. This tort protects individuals against intentional, significant invasions of privacy that would be highly offensive to a reasonable person.

The tort of intrusion upon seclusion requires:

• An intentional or reckless invasion of the plaintiff's private affairs or concerns
• The invasion must be highly offensive to a reasonable person
• No publication is required—the invasion itself is the wrongful act

This tort is particularly relevant in cases involving unauthorized access to personal information, surveillance, or data breaches. Unlike defamation, it does not require that any information be published—the invasion of privacy is actionable in itself.

Public Disclosure of Private Facts

Some provinces have recognized a tort of public disclosure of private facts, which addresses the unauthorized publication of true but private information. This tort protects against revelations that, while truthful, are highly offensive and not of legitimate public concern.

Other provinces, including British Columbia, Manitoba, Newfoundland, and Saskatchewan, have enacted statutory privacy torts that make such conduct actionable without proof of damage. These statutes recognize that privacy is a fundamental value worthy of legal protection.

Privacy and Defamation Overlap

In the digital context, privacy breaches often intertwine with defamation—for example, where private or confidential information is published alongside false allegations. In such cases, plaintiffs may pursue both claims simultaneously, seeking remedies that address both the violation of privacy and the damage to reputation.

Remedies may include injunctions preventing further disclosure, damages for distress and humiliation, and in regulatory contexts, proceedings under Canada's federal privacy statute, PIPEDA (Personal Information Protection and Electronic Documents Act).

Strategic Reputation Management and Media Response

Effective defamation and reputation management extends beyond litigation. It often requires strategic coordination with media outlets, online platforms, and search engines. The goal is to mitigate harm swiftly while preserving the client's reputation and minimizing public attention to the false statements.

Takedown and De-Indexing Requests

Strategic reputation management includes preparing takedown and de-indexing requests grounded in evidence and policy language. Many platforms have terms of service that prohibit defamatory, harassing, or privacy-violating content. By framing requests within these policies, counsel can often secure voluntary removal without litigation.

Similarly, search engines like Google have processes for removing content that violates court orders or local laws. De-indexing requests must be precise, well-documented, and legally sound to succeed.

Media Coordination and Corrections

When false information appears in news media, coordinating with journalists to correct or update inaccurate publications can be highly effective. Reputable journalists and editors are generally willing to correct errors when presented with clear evidence. This approach is often faster and less adversarial than litigation.

Many media organizations have formal correction policies and editorial standards bodies that review complaints. Engaging with these processes can result in published corrections, clarifications, or updates that mitigate the harm.

Rights of Reply

Issuing rights-of-reply or public statements can help mitigate damage by providing the plaintiff's perspective to the public. A well-crafted response can reframe the narrative, correct misunderstandings, and demonstrate that the allegations are false or misleading.

However, public responses must be carefully considered. In some cases, responding publicly can amplify attention to the false statements (the "Streisand effect"). Legal counsel should assess whether a public response will help or harm the client's interests.

When to Pursue Legal Action

Not every false statement warrants legal action. Counsel must advise on the balance between legal action and strategic silence. Factors to consider include:

• The severity and reach of the defamatory statements
• The credibility of the publisher and likelihood of repetition
• The potential for litigation to draw more attention to the allegations
• The availability of effective non-legal remedies
• The client's tolerance for publicity and the costs of litigation

Grigoras Law assists clients with rapid response frameworks, particularly when immediate action is needed to prevent further dissemination. Our firm's experience spans defamation litigation, injunctive relief, online content removal, and privacy regulation, ensuring that every response is proportionate, lawful, and designed to restore reputational integrity.