In an era where publications, reviews, and profiles for both individuals and businesses are increasingly found online, defamation law (often called “libel and slander law”) has become ever more relevant and important. This begs the question:
What is defamation?
In short, defamation is a communication about a person or business that is untrue and causes harm to their reputation.
Libel and slander are simply the specific forms of defamation, where libel is a written communication and slander is a spoken communication. Where a case of defamation can be successfully established, a claimant can seek compensation for, among other things, the harm to their reputation and quantifiable losses, such as business losses.
Taking Defamation to Court
In an action for defamation, generally what must be shown in order for a claimant to prove that a statement was defamatory is as follows:
- A statement was made that would have the effect of lowering the reputation of the claimant in the eyes of a reasonable person;
- The statement refers to the claimant; and,
- That statement was published to at least one other.
With the above in mind, it is also important to recognize that a person is permitted to make such statements in appropriate circumstances. In fact, many defamation cases are heavily fought on the issue of whether a defendant’s statement was permissible in the circumstances (also known as defences). Common defences in defamation cases include:
- Truth or justification – this defence is essentially as it sounds;
- Fair Comment – this defence protects the expression of certain opinions based on proven facts; and,
- Qualified privilege – this defence provides certain circumstances in which a person is permitted to speak freely in exercising a duty.
Of course, the specific elements of a case, whether from the claimant’s perspective or the defendant’s, are more nuanced than the brief summary written above. Further, there are additional defences that are open to a defendant to argue, depending on the circumstances.
Recent Defamation Law Case Examples
To help visualize the types of circumstances upon which defamation cases are litigated, here are a few examples of recent issues that have gone before the courts:
- Posting a review of a business online;
- Writing something negative about a person’s reputation on a social media platform (for example, Facebook or Instagram);
- Public comments made about a professional in front of his or her colleagues or actual or potential clients; and,
- Journalistic publications.
For a recent example of a case dealing with publications online, see Level One Construction Ltd. v Burnham et al, 2018 BCSC 1354. In this case, our defamation lawyers Christopher Morcom and James Gill were successful in having a defamation claim brought against their client dismissed. The substance of the allegations concerned a dispute over a construction project, a consumer affairs news report, and a posting online on Yelp.