Defamation FAQ

Yes, defamation can be a crime in Canada. Here’s a simplified explanation:

1. What is criminal defamation? According to Section 300 of the Criminal Code of Canada, it’s a crime for someone to knowingly publish false defamatory material, meaning damaging statements that they are aware are untrue. If found guilty, a person can face up to five years in prison.

2. How is defamatory material defined? It refers to published content that could harm someone’s reputation by subjecting them to hatred, ridicule, or contempt, or if it’s intended to insult the person about whom it’s published. Publication includes showing, sharing, or delivering this material with the intent that others will see or read it.

3. Are there any defenses? Yes, the Criminal Code outlines several defenses. For instance:

   • Newspaper owners and sellers are generally not held responsible unless they knew or were negligent about the defamatory content.
     
     
   • Statements made in court or government proceedings are typically protected.
     
     
   • Reports that fairly represent public meetings, court, or parliamentary proceedings.
     
     
   • Statements believed to be true and in the public interest.
     
     
   • Responses made to challenges or to refute defamation against oneself.
     
     
   • Sharing information in response to an inquiry, when acting in good faith.
     
     
   • Sharing information when you have a legitimate interest in the topic and act reasonably.
     
     
   • Communicating to seek remedy for a wrong or grievance.
     
     

4. What about Section 301? While there’s another section (Section 301) that considers publishing defamatory material a crime even without knowing it’s false, this has been deemed inconsistent with the Canadian Charter of Rights and Freedoms. As a result, it’s not effective.

5. Why is this crime recognized? Even though individuals can pursue civil lawsuits for defamation, the Supreme Court of Canada acknowledges the criminal provision as it reflects society’s condemnation of deliberate false statements that can cause significant harm. This law might deter those who don’t fear civil penalties and support those who can’t afford to initiate civil cases.

It’s essential to consult a legal expert when navigating this complex area. The above information is a summary and doesn’t cover every detail or nuance.

1. Understanding Potential Damages in a Defamation Case:
   If you’re considering suing for defamation in Canada, one of the main motivations might be to seek damages. These damages can be considerable if one’s reputation has been significantly harmed by defamatory statements. Damages can include compensation for hurt feelings, damage to reputation, and even punitive damages aimed at punishing the offender. Importantly, there’s no preset maximum amount that can be awarded for defamation.

2. Recovering Legal Expenses:
   When you win a defamation case in Canada, you are generally entitled to recover a portion of your legal fees from the losing party. This principle in Canadian courts dictates that the losing side typically contributes towards the legal fees of the winning side.

3. Potential Risks of Litigating Defamation Cases:
   If you decide to pursue a defamation case and don’t succeed, particularly under legislative frameworks like the anti-SLAPP laws in Ontario, you might be required to pay a substantial portion, if not all, of the legal costs of the defending party. These costs can reach hundreds of thousands of dollars.

4. Court’s Role in Deciding Costs:
   Although there’s a general expectation for the losing side to cover some legal fees of the winning side, the precise amount is at the court’s discretion. Factors such as the conduct of the parties and whether their actions unnecessarily prolonged the litigation are taken into account. The court also weighs what is fair and reasonable for the losing party.

5. Opportunities for Higher Recovery:
   In specific exceptional cases, plaintiffs who prevail in their defamation suits might recover almost all of their legal fees. This is particularly likely when the defendant’s actions were particularly malicious or deceitful. Recent cases involving online defamation underline the inclination of courts to award full legal costs when defamation takes place on the internet and has particularly harmful consequences.

6. Defensive Measures for the Defendant:
   Those accused of defamation should gather pertinent evidence and think through potential defences. For online defamation cases, reviewing the content in question can help determine its nature—whether it’s genuinely defamatory or merely an expression of opinion. Removing or adjusting potentially defamatory online content might help avoid expensive litigation.

7. Understanding Costs in Anti-SLAPP Cases:
   Anti-SLAPP (Strategic Lawsuit Against Public Participation) laws are designed to deter lawsuits aimed at silencing individuals on matters of public interest. If a defamation case gets dismissed under this legislation, the party who sought the dismissal usually recovers their full legal costs. This increased cost framework serves public policy purposes, including deterring unnecessary defamation suits and upholding freedom of expression.

8. Evaluating the Validity of the Case:
   Both parties, especially the plaintiff, should critically assess the real merits and intentions of a defamation claim. The court frowns upon cases brought in bad faith or with hidden motives. Gauging the actual damage and the validity of the claim is crucial.

9. Considering Anti-SLAPP Motion Timing and Impact:
   Timing is critical when thinking of an anti-SLAPP motion. These motions are generally meant for early litigation stages. The objective is to avoid extensive exploration of the case’s merits, concentrating instead on the real impact and intent behind the defamation allegation.

In summary, while defamation claims can yield significant damages in Canada and help recoup legal expenses, they come with inherent risks. Thoroughly evaluating the merits of the case, potential legal costs, and the prevailing legal environment is paramount before embarking on a defamation lawsuit.

The realm of Internet and Social Media Defamation brings a new dimension to defamation law by adding a layer of complexity to the traditional understanding of defamation, as it extends beyond physical boundaries and territorial jurisdictions. The stakes of reputation protection now expand far beyond one’s immediate community, due to the far-reaching and instantaneous nature of digital communication.

In the past, the effect of defamation was generally localized, mostly affecting an individual’s local neighbours or business associates. However, the rise of the internet and social media has globalized the impact of defamatory statements. Today, a defamatory tweet or Facebook post can originate in one corner of the globe and instantaneously reach and cause harm in another.

These advancements pose significant legal challenges. For example, when a defamatory statement is published online, the question arises as to where the “publication” is considered to have occurred, and consequently, which court has jurisdiction over the case. The complexities extend further when considering cases involving individuals with strong personal and business ties across multiple countries.

Additional complexities lie in the determination of jurisdiction. In situations where a defendant resides outside the jurisdiction of the court where the claim was filed, it becomes essential for the plaintiff to establish a “real and substantial connection” between their chosen forum and the subject matter of the litigation. In the world of internet defamation, this often means demonstrating that the defamatory statement was accessed, read, or downloaded by at least one person within the chosen jurisdiction.

A further complication arises in the event of a forum non conveniens argument, where the defendant may argue that there is a more appropriate forum for the lawsuit. This stage of jurisdictional analysis becomes especially pertinent in internet defamation cases due to the expansive reach of online communication.

Lastly, the choice of law adds another layer of complexity, as the applicable law can significantly vary from one jurisdiction to another. The applicable law is typically the lex loci delicti (the law of the place where the harm occurred), but even this norm has been a subject of debate in internet defamation cases.

All these complexities necessitate a keen understanding of the legal landscape of Internet and Social Media Defamation, as well as strategic decision-making in terms of jurisdiction and applicable law. Defamation law is not only about navigating these complexities but also about defending or restoring an individual’s or entity’s reputation in the borderless realm of the digital world.

This is technically called an “injunction.” 

Within the scope of injunctions, we address the intricate nuances of obtaining, defending, and comprehending interlocutory injunctions, particularly in defamation cases. The courts exercise meticulous caution while considering defamation injunctions due to their impact on freedom of expression and potential implications on defences such as justification or fair comment. Therefore, these injunctions are usually granted only in the most unequivocal cases.

For an injunction to be granted, a court must be convinced that any reasonable judge would deem the matter at hand to be libelous. The injunction will likely be denied in situations where the alleged defamatory meaning can be debated or if the defendant intends to justify or rely on fair comment unless it is evident that such a defence will fail. The court may also decline if the words were published on an occasion of qualified privilege, unless it is clear that the defendant’s proposed statement is patently malicious.

While considering defamation cases, courts are likely to acknowledge that damages can sufficiently compensate the plaintiff if they have been wronged, unless the defamation is particularly severe. The court may regard damages as an appropriate remedy if the defamation pertains to a corporation’s business practices. However, widespread internet publication of the defamation, causing harm that cannot be adequately compensated in damages, may tilt the balance in favour of granting an injunction.

In the event an injunction is granted, it should extend no further than necessary to protect the plaintiff from further publication of the defamatory words. The general test for interlocutory injunctions in civil litigation, prescribed by the Supreme Court of Canada, is modified in defamation cases. The injunction may only be granted to restrain defamatory speech where the publication is clearly defamatory, where any defence of justification or fair comment will evidently fail, and where the plaintiff can prove they will endure irreparable harm if the injunction is refused.

Courts may grant injunctions restraining conduct outside their jurisdiction, such as when a non-resident defendant has caused damage by publishing libels within the jurisdiction via the Internet. Also, injunctions can be granted post-judgment if there is a possibility that the defendant will continue to publish defamatory statements or if compensation may not be receivable from the defendant. In addition, in cases of internet defamation, a complainant can obtain a “Norwich” order that compels a third party to disclose essential information about the defendant, especially when the defamer’s identity is anonymous. This order plays a pivotal role in establishing the identity of the defendant, which is crucial for the jurisdiction and enforcement of court rulings.

Our practice also navigates the terrain of anti-SLAPP Screening. A Strategic Lawsuit Against Public Participation (SLAPP) is often employed by corporations or wealthy individuals to suppress public participation or criticism on matters of public interest. SLAPP suits can result in the exhaustion of the target’s finances and energy, silencing them and discouraging others from participating in public debate.

Protection against these suits is provided under Ontario’s Protection of Public Participation Act. This act introduced new provisions in the Courts of Justice Act to discourage litigation that unduly limits freedom of expression on matters of public interest. These provisions encourage individuals to express themselves on public matters, promote broad participation in debates, discourage litigation as a means of limiting expression, and aim to reduce fear of legal action that could hamper public participation.

The legal standard allows a defendant to bring a motion to dismiss the proceeding if it arises from an expression made by them on a matter of public interest. An “expression” is defined broadly to include any form of communication, whether verbal or non-verbal, public or private. A proceeding “arises from” an expression if there’s a causal relationship, and it doesn’t necessarily have to be a defamation or libel lawsuit directly concerned with the expression.

For an expression to relate to a matter of public interest, some segment of the community should have a genuine interest in receiving information on the subject. This includes issues involving governance and administration of public bodies, the conduct of governmental affairs, elections for public office, the operation of courts, and environmental policy. The quality or motive behind the expression doesn’t bear relevance at this stage.

If a defendant demonstrates that the expression relates to a matter of public interest, the responding party then must show grounds to believe that the proceeding has substantial merit, the defendant has no valid defence, and that the harm likely to be suffered is severe enough that the public interest in permitting the proceeding outweighs the public interest in protecting the expression. Failure to satisfy any of these requirements results in the dismissal of the proceeding.

The evaluation of “grounds to believe” refers to the existence of a factual and legal basis for concluding that the underlying claim has substantial merit, and the moving party has no valid defence. The “substantial merit” requirement demands that the underlying proceeding has a real prospect of success. If there’s any valid defence, the responding party has not met its burden, and the proceeding will be dismissed.

The final stage involves weighing the harm suffered and the public interest in continuing the proceeding against the public interest in protecting the expression. The responding party only needs to provide evidence for the motion judge to infer the likelihood of the existence of harm and its causal link to the expression in question. Both monetary and non-monetary harm are relevant, and any harm to reputation is of significant importance. Factors such as the quality and motivation behind the expression, the history of litigation between the parties, potential chilling effect on future expressions, and the disproportion between the resources used in the lawsuit and the harm caused are all considered in the weighing exercise.

Navigating the anti-SLAPP screening process requires a deep understanding of these legal intricacies, and we are equipped to guide you through this process.

Under the broader umbrella of defamation law, we often navigate related torts that might not fall squarely under traditional defamation but are nonetheless integral to our practice.

Malicious falsehood, or injurious falsehood, is one such area. This tort is focused on false statements that disparage a plaintiff’s property or goods, rather than the plaintiff’s personal reputation. The elements of this claim demand proof that the false words were published with malice, causing special damage to the plaintiff. This tort emphasizes economic harm, diverging from the emotional or reputational harm central to traditional defamation. Ontario’s Libel and Slander Act modifies the common law, lifting the requirement of proving special damage under specific circumstances.

In certain scenarios, negligence claims may surface in the context of defamation. Courts usually discourage framing actions as negligence when they essentially represent defamation claims, especially when intended to circumvent specific defamation limitations. Nevertheless, recent case law has revived the use of negligence theories in defamation settings, allowing for claims that encompass broader issues than merely the harmful statement itself. For example, a claim might include negligent handling of the situation surrounding the defamatory act. Such claims may be valid if there is proximity between plaintiff and defendant, foreseeability of harm, and damages cover more than just harm to the plaintiff’s reputation.

In addition, intentional interference with economic relations can sometimes be asserted alongside defamation. This cause of action entails proving that the defendant intended to injure the plaintiff, interfered with a third party’s liberty to deal with the plaintiff using wrongful means, and the plaintiff suffered economic loss as a result. In some cases, a defamatory statement might serve as the “wrongful means” of interference.

Violations of privacy, including the publication of intimate images and “intrusion upon seclusion,” may also be actionable alongside defamation. While the truth is generally a defense in defamation, the publication of truthful information can still infringe upon an individual’s privacy, creating a separate cause of action. Some provinces have statutes providing causes of action for violation of privacy without requiring proof of special damage. These legal provisions protect an individual’s reasonable expectation of privacy from wilful or substantial violations.

Finally, the tort of conspiracy can arise in defamation cases, although it has specific requirements and contexts in which it applies. The tort of conspiracy involves individuals acting in combination with the intent to cause injury or engage in unlawful conduct directed at the plaintiff. An allegation of conspiracy is typically valid only if it’s not duplicative of another tort claim or if the damages claimed result from the conspiracy rather than the defamation itself.

By understanding and incorporating these related torts into our practice, we provide a comprehensive approach to protecting our clients’ rights beyond traditional defamation law.