Defamation Overview
In recent years, defamation is a rapidly developing area of the law (largely due to the internet).
Please note that defamation is a very technical area of the law. If you do not retain our firm, we recommend that you consult another lawyer with an established practice in this field.
What is defamation?
Broadly defined, defamation is the publication of a false statement concerning another person to at least one other person without lawful justification.
There are two subcategories of defamation:
- Libel is defamation that is published in writing (including on the internet, social media, etc.). In the case of libel, damages are presumed;
- Slander is verbal. In the case of slander, proof of damages are typically required (with some notable but limited exceptions).
How do I prove I've been defamed?
A person claiming defamation must prove, on a civil standard (“balance of probabilities) that:
- The expression would tend to lower his/her reputation in the eyes of a “reasonable person”;
- The expression referred to you specifically; and
- The expression was communicated to at least one person other than you.
What defences are there to defamation?
- Justification – essentially, that what was said was true;
- Fair comment – a Court will ask whether anyone could have honestly expressed the defamatory comment on the proven facts. In this case, a defendant must establish that the comment was a matter of public interest, that it was based on fact, and that the comment must be recognizable as “comment”. Note further that this defence is not available if the plaintiff establishes that the defendant acted with malice;
- Responsible communication – this applies to matters of public interest. It bears in mind the seriousness of the allegation, the public importance of the matter, the urgency of the matter, the status and reliability of the source, whether the plaintiff’s side of the story was sought and accurately reported, whether the inclusion of the defamatory statement was justifiable, whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth, and any relevant circumstance. Malice prevents this defence from being used;
- Qualified privilege – this protects misstatements of fact made on an occasion where a defendant has an interest or legal, social, or moral duty to communicate the defamatory expression and its recipients have a corresponding duty or interest to receive that communication. Again, malice prevents this defence from being used; and
- Absolute Privilege – this applies to expression communicated on a judicial or quasi-judicial proceeding or in the case of parliamentary proceedings.
I was defamed and someone else repeated the defamatory statements. Can they be sued too?
Republication of or restating a defamatory comment can attract liability to the person who republishes it. Note that the operator of a website is generally not liable for republication when the operator merely included hyperlinks to defamatory material on other sites.
What happens if they apologized?
In Alberta, an apology doesn’t mean an admission or fault or liability in a matter. That said, an apology can mitigate damages and can help resolve matters in some instances.
How long do I have to sue?
Typically you have two years to sue from when you knew or ought to have known about the defamatory comments. There are some cases that suggest that, in the case of online defamation, an action arises for each day that a website that contains the defamation is known. This said, it is generally good practice to act as quickly as possible when you learn of defamatory comments.
Someone posted a negative online review for my business. What do I do?
Defamation may apply in this situation. There are a number of things that you can do immediately that do not involve legal action, including responding to the review, flagging the review, or contacting the review agency directly. If that doesn’t work, you may wish to consider a defamation action.
Our firm has successfully represented numerous clients to advance or defend defamation actions. Not sure where to start? Please give us a call!
