Libel vs. Slander: The Key Differences and When Proof of Damage Is Required

Most people think of defamation as something that is written: a false statement in a newspaper, a damaging post on social media, a defamatory review left online. That category of defamation is libel. But defamation does not require a keyboard or a printed page. A false statement spoken aloud to another person can be just as damaging to a reputation as anything committed to writing, and in the right circumstances it is fully actionable in law. That spoken form of defamation is slander, and it operates under a distinct set of rules that plaintiffs and defendants alike need to understand.

This article explains what slander is, how it differs from libel, when it requires proof of actual loss and when it does not, and what the practical implications are for someone who has been defamed by what was said about them rather than what was written.

What Is Slander?

Slander is the publication of a defamatory statement by means of oral communication. For virtually all practical purposes, slander means speech: words spoken within the hearing of at least one person other than the subject of the statement.

The oral nature of slander is what distinguishes it from libel. Libel covers defamatory statements in written or otherwise permanent form, including print, broadcast, and online publications. Slander covers transient communications, primarily spoken words, though there may be unusual cases at the margins where other transitory forms of communication, such as sign language or a skywritten message that quickly disperses, could be treated as slander rather than libel.

With that formal distinction noted, the underlying law of defamation applies to both. The principles governing what makes a statement defamatory, the requirement that it refer to the plaintiff, the rules on publication, and the available defences of justification, privilege, fair comment, and consent all apply equally whether the claim is framed in libel or slander. Many provincial statutes define “defamation” to include both, so the label attached to the cause of action often matters less to the substance of the defence than it does to one specific and highly significant issue: the obligation to prove damages.

The Core Distinction: Proving Damage

In a libel action, a plaintiff’s damages are presumed. The fact of publication of defamatory material, once established, entitles the plaintiff to damages without having to prove that they actually suffered any loss. The law treats written defamation as sufficiently inherently harmful to reputation that proof of loss is not a prerequisite.

Slander is treated differently, and the reason is historical. Spoken words are transient. They dissipate once uttered, they reach only those within earshot, and they are more easily denied or corrected than something in print. The law has historically viewed the more limited and temporary nature of spoken defamation as a reason to require plaintiffs to do more work before the courts will intervene.

The general rule in slander is accordingly that a plaintiff does not have a cause of action unless they can demonstrate actual, tangible damage, specifically a loss of business, money, property, or something equivalently concrete. A plaintiff who was slandered and suffered hurt feelings, embarrassment, or reputational harm that they cannot quantify in financial terms is not, at common law, entitled to damages in a slander action. Unlike in libel, the harm is not presumed.

Special Damages in Defamation

In defamation law, the term “special damages” has a specific meaning that differs from its use in personal injury litigation. In a defamation context, special damages refer to actual pecuniary loss, or a loss that can be estimated in money, that the plaintiff has suffered as a result of the defamatory statement. This is separate from the general compensation available for injury to reputation and can include, for example, loss of business opportunity caused by a defamatory statement, a general decline in custom or patronage, or lost employment income.

A plaintiff must specifically plead and prove special damages. Evidence that financial loss could reasonably be expected is not enough. Evidence of actual loss, with both causation and quantum established, is required. The Supreme Court of Canada recognized in Botiuk v. Toronto Free Press Publications Ltd. that special damages can arise from a general failing of business, loss or decline of patronage or hospitality, and loss of customers.

This evidentiary burden matters practically. A business owner who loses clients after a competitor spreads a false rumour about them needs to be able to tie specific lost business to the slander, not simply argue that the rumour was out there and their business suffered around the same time.

Slander Actionable Per Se: When Proof of Loss Is Not Required

The common law recognizes that some categories of slander are so predictably damaging, or so intrinsically outrageous, that requiring proof of actual loss would be unfair to plaintiffs and inadequate as a deterrent. For these categories, the special damage requirement is dispensed with and the slander is treated as actionable without proof of damage, in the same way libel is. These exceptional categories are described as slander actionable per se.

Three categories of slander actionable per se are recognized at common law.

Imputation of a Criminal Offence

A slander is actionable per se if it imputes the commission of a criminal offence. The spoken words must allege that the plaintiff has committed acts that constitute an offence under the criminal law. A specific accusation is not required: a general charge of criminality will also be sufficient, provided it conveys the sting that the plaintiff is guilty of conduct that constitutes a crime.

This category reflects an obvious reality. An accusation of criminal conduct is sufficiently serious, and sufficiently likely to cause concrete harm, that requiring a plaintiff to prove a specific financial loss before the courts will act would inadequately protect the interests at stake.

Disparagement in Office, Profession, Trade or Business

A slander is actionable per se if it is defamatory of the plaintiff in their office, profession, calling, trade, or business. To bring a claim within this category, the plaintiff must have actually been carrying on the work that the slanderous words disparage at the time the words were spoken.

This is the category most frequently in play in commercial and professional contexts. A false statement spoken to a client or prospective customer that questions the competence, honesty, or professional conduct of a lawyer, doctor, contractor, accountant, or business owner falls squarely within it. So does a spoken allegation that undermines a professional’s standing or fitness to practise.

In Ontario, section 16 of the Libel and Slander Act lightens the plaintiff’s burden further in this category. It provides that the slander is actionable without proof of actual damage as long as it is shown that the words were calculated to disparage the plaintiff in any office, profession, calling, trade, or business held or carried on by the plaintiff at the time of publication. “Calculated” in this context means that it was more likely than not that the words would produce that result, not that the speaker intended the result.

Imputation of a Loathsome Disease

A slander is actionable per se if it falsely states that the plaintiff suffers from a loathsome disease. The antiquated terminology reflects the category’s origins, but it is not without contemporary relevance. False accusations that someone has HIV, AIDS, SARS, or COVID-19 are exactly the kind of statement that can cause serious social and professional harm while being difficult to translate into specific financial loss. The category exists to ensure that plaintiffs in this position are not left without a remedy simply because they cannot quantify what the accusation cost them.

The United Kingdom has recently abolished this category by statute under its Defamation Act 2013. Canadian common law has not followed suit and the category remains available in Canadian courts.

Statutory Modifications

The common law framework is modified in several Canadian provinces by defamation statutes. Many of these statutes define “defamation” to include both libel and slander, which means their provisions on notice requirements, limitation periods, and defences apply to slander claims as well as libel claims.

In Ontario, the Libel and Slander Act is the primary statute. Beyond the section 16 provision already discussed, the Act modifies several aspects of the common law in ways that can be relevant to slander claims. Parties dealing with a slander claim in Ontario should review the Act carefully rather than relying solely on the common law framework, as the statute in some respects expands and in others constrains the rights available.

Other provinces, including Alberta, Manitoba, New Brunswick, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, and the territories (Yukon, Northwest Territories, and Nunavut), have their own defamation legislation that similarly defines defamation to include slander and modifies the applicable rules in varying ways. A plaintiff slandered outside Ontario will need to assess the applicable provincial statute to determine whether any of its provisions change the common law damage requirements.

What This Means in Practice

For Plaintiffs

The starting point for anyone considering a slander claim is identifying whether the statement falls within one of the three per se categories. If it does, the case can proceed without proof of specific financial loss, which significantly simplifies the damages analysis. If it does not, the plaintiff needs to assess whether they can establish, with evidence, that the spoken statement caused a tangible economic loss and in what amount.

Connecting a slander to one of the three categories is therefore an important pleading consideration. False spoken statements that impute criminality, attack professional competence or business integrity, or allege a serious disease are the clearest cases. Statements that do not fit neatly into any of those categories require a plaintiff to marshal specific evidence of financial harm, which can be both difficult and costly to do.

Documentation matters. A plaintiff who experiences lost business following a slander should preserve evidence of the relationship between the two: records showing the timing of the statements, any communications where clients or customers refer to what they heard, and financial records showing the decline in business before and after the relevant period.

For Defendants

A defendant in a slander action has a meaningful argument available wherever the plaintiff cannot bring the statement within one of the three per se categories and cannot establish specific pecuniary loss. That argument does not go to whether the statement was defamatory, but it may defeat the claim entirely on the basis that no actionable damage has been proved.

Defendants should also review the applicable provincial statute carefully. Statutory provisions that deem slander equivalent to libel for particular purposes, or that create additional categories of actionable slander, vary across jurisdictions.

The same defences available in libel, including justification (truth), qualified privilege, fair comment, and responsible communication, are equally available in slander. A full discussion of those defences is set out in our post on defamation defences. A statement made in the context of an employment reference, a complaint to a regulatory body, or a report to an employer or colleague may attract qualified privilege even if the statement was false and defamatory, provided it was made without malice and within the scope of the duty or interest that grounds the privilege.

Conclusion

Slander occupies a distinct place in Canadian defamation law. The spoken word is treated differently from the written one, primarily because of the historical assumption that oral statements are more transient, more limited in reach, and more easily corrected. That assumption justifies the general requirement that slander plaintiffs prove actual financial loss before the courts will award damages.

But the rule has limits. Where spoken words impute criminal conduct, attack a person’s professional standing, or allege a loathsome disease, the law dispenses with the proof of damage requirement and treats the slander as actionable without more. And in Ontario, the Libel and Slander Act provides additional statutory support for plaintiffs in the professional and trade disparagement category.

For anyone on either side of a spoken defamation dispute, the threshold question is whether the statement fits within one of the recognized per se categories. The answer to that question determines the structure of the claim, the evidentiary burden, and the overall viability of the litigation. Getting it right at the outset matters.