Defamation is a false oral or written statement made by one party to another regarding an individual or organization that harms that individual/organization’s reputation. This can result in legal action if the defamatory statement causes harm to the reputation of an individual or enterprise and is determined to be false. However, the issues arising in this area of law can be incredibly complex, so it is essential to understand the law of defamation in Ontario to safeguard your reputation and protect your interests.

This blog post will provide an overview of what constitutes defamation, the different types of defamation, defences to defamation claims, and possible remedies.

What Constitutes Defamation?

Defamation is a legal concept that refers to false statements made to a third party, such as the public or another individual, damaging the livelihood, reputation, financial status, or well-being of an individual or organization. If the statements are made in writing, it is considered “libel.” Alternatively, if the statements are made orally from one person to another, this is called “slander.”

Libel

False statements made in lasting form (such as in writing or digitally) that can be seen by others are referred to as “libel.” This includes pictures and other representations that might hurt a person or organization’s reputation.

If a person/organization believes they have been impacted due to libel, they may commence legal action against the individual or organization responsible for the libellous statement.

Slander

Alternatively, defamation may occur verbally, referred to as “slander.” This may occur through spoken word or other non-permanent means of communication between parties. Slanderous statements may be made between parties throughout the course of a conversation, interview, or speech.

Despite not being in written form, slanderous statements can result in the same severe consequences as libel. People who have been the target of slanderous statements have the same legal rights and protections as those subjected to libel.

Establishing a Defamation Claim in Ontario

Generally, to establish a claim of defamation in Ontario, it must be shown that:

• The statement in question was false;
• The statement was communicated to at least one other person, whether intentionally or carelessly; and
• This caused harm to the person/organization’s reputation, financial status, or loss of other opportunities.

Claimants must be mindful of the general two-year limitation period within which they may commence a defamation case in Ontario. While the limitation period runs from the day the plaintiff discovered the defamatory statement, if the plaintiff is initially unaware of the defamatory statement, the limitation period will begin from the date the statement was made.

Ontario’s Libel and Slander Act also provides a three-month limitation period for libel that occurred through publication in a broadcast or newspaper. Further, the Libel and Slander Act requires a plaintiff to serve the defendant with a written notice of action within six weeks of discovering the libel.

Defending a Defamation Claim

In accordance with the Canadian Charter of Rights and Freedoms, Ontario law affords individuals free speech rights and freedom of expression. However, when it comes to defamation, individuals and organizations accused of making defamatory statements may rely on various defences to safeguard their freedom of expression.

However, these defences must be balanced with the rights of individuals and organizations when preserving their reputations. It is vital for a defendant in a defamation matter to seek legal advice to determine which defences are available in their circumstances. Some common defences to defamation claims include fair comment, truth, qualified privilege, innocent dissemination, and responsible communication on matters of public interest.

Fair Comment

If a person provides their viewpoint on a topic of public significance, they may seek to rely on the defence known as “fair comment”. To support this defence, they must provide evidence showing that:

1. The statement was on a matter of public interest;
2. It was based on fact;
3. It was recognizable as a comment (but can include inferences of fact); and
4. A person could honestly express the stated opinion based on the proven facts (i.e., it was a “fair comment”).

Truth

A person accused of making a defamatory statement may attempt to defend themselves by relying on the truth of their statement. However, the defendant bears the onus of responsibility in establishing that the statement is true. Generally, a true statement is not defamatory, even if it harms the reputation of the person defamed by publishing it.

Qualified Privilege

In limited circumstances, a defendant may be permitted to rely on the defence of qualified privilege, under which they had a duty, whether legal or otherwise, to provide specific information to another party. Further, the person receiving such information must have a legitimate interest in receiving it. For example, defamatory information may be expressed during a legal or parliamentary hearing.

Innocent Dissemination

The defence of innocent dissemination may be relied upon when a party is sued for spreading defamatory statements they were unaware of. In today’s digital world, it is not uncommon for people to frequently “share” information online that they did not personally produce. For example, an individual may share an article which incorrectly states something about another person or organization. However, to rely on this defence, the defendant must prove that they did not know that the published material contained defamatory information. For this defence to succeed, the context of the defamatory statement and the case’s unique circumstances will be considered.

Responsible Communication on Matters of Public Interest

The Supreme Court of Canada created this defence in the landmark case of Grant v. TorStar Corp. This defence is often available to media and journalists who have allegedly made a defamatory statement in a publication. When assessing this defence, a court will usually consider whether the publication was on a matter of public interest and whether publishing the defamatory communication was responsible. This analysis is based on several factors, including:

• 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 other relevant circumstances.

Remedying a Defamation Claim

In Ontario, when a plaintiff is successful in a defamation lawsuit, they may seek to remedy the harm to their reputation in various ways. These remedies may include monetary damages, an injunction to prevent the defendant from repeating the defamatory statement, and/or an order compelling the defendant to take action to rectify the harm caused. If the defamatory comment has been published online, a plaintiff may also seek a court order to remove the statement. Alternative remedies may also be considered in an effort to efficiently resolve the matter and minimize further harm.

For Advice on Defamation Matters, Contact the Lawyers at Milosevic & Associates in Toronto

If you have been accused of making defamatory statements or believe that defamatory comments have been made about you in the media or online, contact the skilled defamation, libel and slander lawyers at Milosevic & Associates. We ensure that clients and their reputations are protected. To speak with a member of our team and learn how we can assist you, contact us by phone at 416-916-1387 or complete our online form.