Defamation is a tort action in which the plaintiff claims that its reputation has been harmed. The defendant is accused of “defaming” the plaintiff by spreading incorrect information. In layman’s terms, the plaintiff claims that the defendant injured their reputation by spreading falsehoods about them.
Defamation law strives to protect a person’s reputation, which is intrinsically tied to his or her human dignity. However, a variety of defenses have evolved to preserve other essential principles, such as freedom of expression and press.
Who Has the Right to Sue and Can be Sued?
A defamation action is a personal action. Only someone who feels they have been defamed may file a lawsuit. A plaintiff must be able to plausibly assert that their reputation has been harmed for the claim to be successful.
Plaintiffs in a defamation action may include:
- Any living individual can be a plaintiff in a defamation case. Unlike in some other nations, public people in Canada can sue for defamation.
- Legal entities, such as corporations. For example, instances such as where plaintiffs have been non-profit corporations that owned a senior’s residence home.
The following are not admissible in a defamation claim:
- A deceased person’s estate. The law of defamation only applies to live people’s reputations.
- Governments accusing private individuals of slander. This is related to the promise of free expression.
Of course, no plaintiff will prevail until all elements of the cause of action are proven.
When it comes to who might potentially be held responsible for defamation, the law throws a broad net. Anyone who “publishes” defamatory material can be sued.
When defamation is repeated, the original author may be held responsible if:
- They approved it; or
- The republication is a natural and expected outcome of the initial publication.
Multiple Defendants’ Liability
Defendants in defamation cases should be aware that even if they had a tiny role in the sequence of events, they may bear entire responsibility for the defamation.
For example, in Botiuk, the lawyers who signed the Lawyers’ Declaration were jointly and severally liable for the full extent of damage caused by other statements made by the primary defendant because they did not limit the use of the declaration.
Similarly, under the concepts of concerted action liability, numerous defendants might be found responsible. Secondary defendants should be cautious when a tort, like as defamation, is committed in pursuit of a shared intent or plan to do injury to the plaintiff. All who committed any of the following can be held equally liable with a major offender (for example, the author of the defamatory statements):
- Actively participated.
- Aided it via cooperation or request.
- Assisting or encouraging the principal offender.
- Approved and embraced the wrongdoer’s actions for their own gain.
Defamation Elements: Dissecting the Cause of Action
To prevail in a defamation suit, whether for libel or slander, the plaintiff must show:
- That the statements in dispute are defamatory.
- That the plaintiff was alluded to by the terms.
- That the statements were spoken to at least one person other than the plaintiff.
If the plaintiff can establish these three factors, falsehood and harm are inferred, and the onus is on the defendant to show a legitimate defense. The only exception is in cases of defamation where specific damage must first be demonstrated.
Defamation is a tort with strict responsibility. It is not required to demonstrate that the defendant was negligent or meant to cause injury.
Defenses are particularly essential in defamation law since the plaintiff has a very simple burden to meet. A significant portion of the “activity” in defamation lawsuits revolves around the possible defenses.
Defence of Justification
The justification defense considers what is true. Something that is true cannot be slanderous. When remarks are deemed to be defamatory, there is a rebuttable presumption that they are untrue. The burden of proof is on the defendant to demonstrate otherwise.
To prevail on the justification defense, the defendant must demonstrate on a balance of probability that the defamatory remarks were accurate in substance and reality. They can do so by producing evidence proving that the entire defamatory statement is essentially accurate, including:
- Specific accusations made.
- Any factual conclusions derived from those allegations.
A tiny percentage of instances contain protected communications, in which no defamation action can be launched. For public policy considerations, liability for defamation is banned in certain circumstances. Absolute privilege can insulate otherwise defamatory publications from accountability in very restricted situations. You won’t be able to employ this defense unless your situation can fit into one of the recognized categories.
The following are examples of situations in which an absolute privilege will apply:
- Acts of top executive officers of the state in the exercise of their official responsibilities.
- Statements made during legislative sessions.
- All statements made in the context of judicial proceedings.
- This category has been expanded to encompass quasi-judicial procedures, as well as individuals exercising quasi-judicial tasks such as investigation in some situations.
Defamatory material released on specific circumstances is protected by qualified privilege. The privilege is attached to the event, not the communication or the parties. Once the occasion is determined to be privileged, the defendant is permitted to disseminate defamatory and false statements about the plaintiff.
It is a legal question whether an event is covered by qualified privilege. It is a defense based on personal connections. The defendant bears the burden of proving the existence of a reciprocal connection. They must establish:
- They have an interest or an obligation to make the assertions. This interest or responsibility may be legal, social, or moral in character.
- That the individual receiving the statements was genuinely interested in obtaining them.
Defendants may be able to effectively defend against a defamation action if the defamatory communications were remarks on public issues. The primary goal of the fair comment defense is to defend the value of free expression.
The fair comment defense will apply if all the following statements regarding the comment are true:
- It is on a topic of public interest.
- It is based on facts.
- It is identifiable as commentary, but it may incorporate factual conclusions.
- It passes an objective test: could any honest person voice an opinion on the proven facts?
Some defenses, such as fair comment and qualified privilege, can be overcome by the defendant’s explicit malice. Some defamation defenses can be overcome if the defendant behaved with malice. However, once the components of the defense are established, the burden shifts to the plaintiff to demonstrate malice.
A defendant is “motivated by malice” if they post the comment and one or more of the following conditions apply:
- The defendant knew it was untrue.
- The defendant published it with reckless disregard for whether it was true or false.
- The defendant’s primary goal was to injure the plaintiff out of spite or enmity.
Damages are the most usual remedy for defamation, as they are for other torts. Courts can award a variety of different sorts of damages, including:
- Special damages.
- General monetary damages.
- Aggravated damages.
- Punitive damages.
Compensation for out-of-pocket expenditures is provided through special damages. They are also known as “actual damages”.
- Expenses incurred to offset losses, such as hiring a search engine optimization business.
- Damages for lost income from a law practice because of defamatory publications.
General damages for defamation are given “at large,” which means they cannot be calculated exactly. General damages:
- Compensate for reputational harm and seek to restore reputations.
- In contrast to special damages, are inferred once the elements of the cause of action are established and no defenses apply (apart from certain types of slander)
Counsel for both plaintiffs and defendants should be aware that in defamation proceedings, aggravated damages might be granted. Technically, these are compensatory damages. They may be granted if the defendant’s behavior has been exceptionally high-handed or oppressive, causing the plaintiff humiliation and distress.
If aggravated damages are to be given, it must be determined that the defendant was motivated by malice, which exacerbated the plaintiff’s injury by one of the following:
- Extending the plaintiff’s reputational harm.
- Increasing the plaintiff’s emotional anguish and humiliation.
Punitive damages can be given in defamation proceedings, as well as other legal actions, to punish and prevent wrongdoing. Keep the following factors in mind when it comes to punitive damages:
- They are not compensating in any way.
- They are more akin to a fine intended to dissuade the defendant’s behavior.
- They are imposed in situations that violate the court’s sense of decency.
- They should only be granted for some reasonable reason if the defendant’s misbehavior reaches this level. When the amount of general and aggravated damages is insufficient to accomplish the goals of punishment and deterrence.
Injunctive relief is another remedy available in defamation situations. Injunctions to remedy defamation, like injunctions in all other situations, are often either:
- Pre-Trial Period (also known as Interlocutory).
Defamation Pre-Trial Injunctions
In defamation lawsuits, pre-trial injunctions are rarely granted. The usual criteria is changed since this sort of injunction would aim to limit speech, undermining free expression.
Instead of proving that there is a substantial issue to be tried, the applicant for the injunction must show that the case is almost certain to prevail since the statements are so obviously defamatory and hard to explain. In other words, an injunction should be issued only:
- In the clearest of circumstances
- And only when anything less than a finding in favor of the plaintiff would be considered absurd. In the present instance, such a verdict should be unavoidable.
Permanent injunctions are more often granted than pre-trial injunctions. They are frequently issued in combination with any monetary award to prevent further dissemination of the defamation.
Successful claimants may seek from the court, for example, an order that the defendant be permanently prohibited from publishing any defamatory remarks against the Plaintiff on the internet or elsewhere.
- The court will almost certainly issue orders limiting the restriction to the specific statements deemed defamatory in the instance.
- The defendant should be allowed to request for a modification of the order as circumstances dictate.
Overall, the intricacies involved with any defamation lawsuit can be quite complex, and it is recommended that you speak to a civil litigation lawyer at Cactus Law if you have any related questions or concerns.
The information presented above is solely for general educational and informational purposes. It is not intended to be, and should not be taken as, legal advice. The information given above may not be applicable in all cases and may not even reflect the most recent authority after the date of its publication. As a result, please refer to all updated legislation, statutes, and amendments. Nothing in this article should be relied on or acted upon without the benefit of legal advice based on the specific facts and circumstances described, and nothing in this article should be interpreted otherwise.
About the Author
Kanwar Gujral is entering his third year at Osgoode Hall Law School in Toronto, Ontario. He has a dedicated interest in litigation, business, and corporate law.