What Does It Take to Sue for Defamation?

Generally, Succeeding In a Defamation Case Requires Proof That Disparaging Words Were Published or Uttered and That The Words Used Were False and In a Context That Would Lessen a Person's Reputation Within the Minds of Right Thinking People.

A Helpful Guide For How to Determine and Understand If a Statement Constitutes As Defamation of Character

Defaming of Character Damaging Individual Reputation Defamation involves untruths that, when told and spread, may injure a person's reputation and thereby cause harm to employment, relationships, friendships, and even one's own confidence, self-esteem, and trust of others.  For these reasons, the law bears heavily upon persons who speak falsely about other persons.  Defamation can arise from one of two methods.  Libel involves disparagement by written words and slander involves disparagement by spoken words.  In Ontario, the common law as well as the Libel and Slander Act, R.S.O. 1990, c. L.12 apply to legal cases involving defamation.

The Law
Introduction to Defamation

A legal case involving defamation often involves the key question of whether a statement was actually made; and if so, whether the statement was defamatory.  In law, the definition of defamation is very broad.  Accordingly, once shown that a statement was made, a lawsuit then considers whether the statement was defamatory.  What constitutes as a defamatory statement was well described within the cases of Ahmed v. DePaulis, 2020 ONSC 2550 and Grochowski v. Young, 2019 ONSC 326 as well as the case of Focus Graphite Inc. v. Douglas, 2015 ONSC 1104 wherein it is also stated that the basis for what is defamatory is consistent regardless of whether the impugned publication was in the traditional sense or via the Internet.

It is also interestingly notable that the definition of what is defamatory omits the requirement that the words were actually defamatory; accordingly, a successful defamation case may result merely by demonstrating that general members of society would find the words defamatory rather than a need to demonstrate that the actual person, or persons, to whom the words were passed actually believed the words and experienced diminished views of the person whom the defamatory words were about.  For this reason, a successful defamation case may arise despite the fact that the words were passed to a person who disbelieves the words and is devoid of any reduction in regard to the reputation of the person about whom the words were spoken or published.  Additionally, as was said in Grochowski , proving an intent to cause reputational injury or harm is also unnecessary to a defamation lawsuit.

[108]  The test which a plaintiff must meet in an action for defamation was set out in Grant v. Torstar Corp., 2009 SCC 61, at para. 28:

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.  If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se:  R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[18]  A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The statement is judged by the standard of the ordinary, right-thinking members of society. Hence the test is an objective one.

[19]  Defamation is, for the most part, a strict liability tort and a defendant is liable whether or not he or she intended to make any statement or one which carried a defamatory imputation, or whether or not the defendant intended or reasonably believed it would not convey a false meaning, or refer to the plaintiff or cause him any damage. The innocence, good faith, motive, belief, reasonableness or intention of the defendant is generally irrelevant to the question of liability. However, it must be shown that the defendant acted intentionally or negligently in publishing the remarks to a third person.

[20]  Defamatory imputations arise from:

a.     literal or natural and ordinary or self-evident meaning of the defamatory words themselves;

b.     an inferential meaning being the meaning inferred, read in or taken from the literal words by the ordinary person without special knowledge, also sometimes referred to as “popular” or “false” innuendos; and

c.     a “legal innuendo” wherein the literal words may be innocent in and of themselves, but in combination with extrinsic facts known to specific people, convey a defamatory meaning.

[21]  Defamatory words are presumed to be false.

[51]  A plaintiff in a defamation action is required to prove on a balance of probabilities:

a.  that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. That test for the meaning of the impugned words in a defamation action is what the ordinary person would infer without special knowledge, also called the natural and ordinary meaning of words, and whether they would lower the reputation of the plaintiff in the estimation of right-thinking members of society generally.

b.  that the words in fact referred to the plaintiff; and

c.  that the words were published, meaning that they were communicated to at least one person of the plaintiff.

[52]  The elements of a cause of action for a defamatory internet publication are the same as for traditional media publications. Damages are presumed. Once a plaintiff proves the required elements, the onus shifts to the defendant to advance a defence in order to escape liability.

Furthermore, when a statement is reviewed for defamatory concerns it is necessary that the complete context should be reviewed and considered rather than merely selecting portions of a statement, or series of statements, and cherry picking those pieces that, independently, may be perceived as offensive or inflammatory; yet, when taken in the complete context may be reasonable and something other than, legally, defamatory.  The requirement to ensure that the complete context of communications are thoroughly reviewed and considered was stated in the case of O'Malley v. O'Callaghan1992 CanLII 6090; and more recently, the test for how to determine whether words are defamatory was explained in Chopak v. Patrick, 2020 ONSC 5431, wherein these cases it was said:

[15]  The allegedly defamatory communications should be viewed in context: as replies to personal criticisms of various editors and columnists as well as the editorial policy of the paper. The danger to be avoided is the dissection of an overall inoffensive whole into incriminating fragments, such as the passages selected and set out in the plaintiff's statement of claim. The standard is one of common sense; the authorities are clear that words which have harmless meanings will not be unreasonably interpreted. The essential question to be asked is how a reasonable person would construe the words used; the plaintiff's subjective interpretation of the statements is irrelevant: Brown, The Law of Defamation in Canada (1987), vol. 1, p. 173. At p. 124, Brown describes the proper contextual approach to interpreting allegedly defamatory material:

In determining the meaning to be attributed to the words, the court will take into consideration all the circumstances of the case, including any reasonable implication the words may bear, the context in which the words were spoken, the audience to whom they were published and the manner in which they were presented.

[36]  The meaning of words in a defamation case is to be determined by the trier of fact, who is to decide on the “natural and ordinary meaning” of the words, which is a “matter of impression.” As Lord Reid stated long ago in Lewis v. Daily Telegraph Ltd., [1964] A.C. 234, at 258-260, the judge or jury, as the case may be, asks simply “what the words would convey to the ordinary man,” who “does not live in an ivory tower and … is not inhibited by a knowledge of the rules of construction.” The “ordinary man” is “not avid for scandal,” is neither “unusually suspicious” or “unusually naïve,” and “one must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.” (emphasis added) As Binnie J. put it in WIC Radio v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 56, “[t]he Court is to avoid putting the worst possible meaning on the words.”

With the above said, one must bear in mind that not all untrue or unflattering words are defamatory.  In a defamation case, the context of the situation in which the words were passed in addition to the words themselves are considered.  A heated debate wherein one person states that the another person is an "idiot" while in the presence of other persons is unlikely to found a successful legal case as 'right-thinking members of society' would likely recognize the inflamatory nature of the debate with a corresponding disregard to the statement and therefore lack of any lowering of reputation (Klar, Lewis: Tort Law (3d) at 675).

Additionally, when considering the 'right thinking ordinary person', it is necessary to recognize that such a hypothetical person is imperfect and remains imperfect per Bou Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R.  214 wherein it was said:

[41]  Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamental rights, care must be taken not to idealize the ordinary person and consider him or her to be impervious to all negligent, racist or discriminatory comments, as the effect of this would be to sterilize the action in defamation.  As the Superior Court stated in Hervieux-Payette v. Société Saint-Jean-Baptiste de Montréal, 1997 CanLII 8276 (QC CS), [1998] R.J.Q.  131 (reversed by the Court of Appeal on other grounds, 2002 CanLII 8266)), [TRANSLATION] “[t]his ordinary person is neither an encyclopedist nor an ignoramus” (p.  143).  As I have noted, in assessing injury in an action in defamation, the ordinary person is only an expedient used to identify damage to reputation.  Judges must therefore avoid limiting themselves to an inflexible test that would prevent them from recognizing actual damage to reputation where it occurs.

Spread of Defamation by Repeat

What a person says without knowing the truth of the matter or without bearing knowledge to the original information poses a risk of  defamation whereas the law of defamation applies to persons who spread a falseity.  Simply said, a person is inexcused from liability for defamation and is unable to use a defence of someone else said it first.  This point was clearly stated in the case of Wan v. Lau, 2016 ONSC 127 where it was said:

[32]  A person who publishes defamatory words is not insulated from liability because he is repeating words said by another person:

Our... law does not love tale-bearers.  If the report or rumour was true, let him justify it.  If it was not true, he ought not to have repeated it or aided in its circulation.  He must answer for it just as if he had started it himself.

Response to Defaming
Mitigation of Harm to Reputation

When a person is defamed, it may be quite appropriate to respond to the defamatory statements by publishing the defamatory statements so to enable a clarifying statement or public debate rather than waiting for the courts to address the matter.  Publicly responding as a means of taking steps to control the narrative and to minimize the reputational harm suffered was stated as an available option within the case of Whitehead v. Sarachman, 2012 ONSC 6641 at paragraph 70 as well as Nixon v. O'Callaghan, 1926 CanLII 421 at page 10.  Furthermore,  as stated in Nixon as well as O'Malley, a limited qualified privilege also attaches to the response:

[70]  The law of defamation balances important competing interests.  Society as a whole benefits from full and frank debate of public issues.  Public officials have a duty to speak candidly on matters of public interest.  Political debates should not be stifled by “libel chill”, which casts a broader penumbra than the metes and bounds of the tort of defamation.  Mis-statements, overstatements and excessive language may be exposed and corrected through public debate, often in a more timely and effective manner than through the slow process of a civil action.

The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression.  There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action….  Public controversies can be a rough trade, and the law needs to accommodate its requirements.

It is not the law that if A slanders or libels B, B has the legal right to slander or libel A. But our law recognizes that we live in a work-a-day world with its rude buffetings, not an idyllic paradise of Watteau shepherds and shepherdesses, but full of men with red blood and strong passions. It is, therefore, tolerant of human frailty. Consequently, "a person whose character or conduct has been attacked is entitled to answer such attack, and if he make defamatory statements about the person who attacked him, such statements will be privileged, provided they are fairly relevant to the accusations made against him and published bona fide (Gatley on Libel and Slander, 1924, p. 262, citing Coward v. Wellington (1836), 7 C. & P. 531; Hibbs v. Wilkinson (1859) , 1 F. & F. 608; Hemmings v. Gasson (1858) , El. Bl. & El. 346, 120 E.R. 537 ; O'Donoghue v. Hussey (1871), I.R. 5 C.L. 124; Dwyer, v. Esmonde (1878), 2 L.R. Ir. 243; Laughton v. Bishop of Sodor & Man (1872), L.R. 4 P.C. 495). 'The law justifies a man in repelling a libellous charge by a denial or an explanation. He has a qualified privilege to answer the charge ; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false,' " per curiam in Brewer v. Chase (1899), 80 Amer. St. R. 527, at p. 532, 46 L.R.A. 397.

[41]  In this case, the conclusion that the four occasions were subject to a qualified privilege arises from several factors. First, the defendant was at all material times defending himself, his staff and the Calgary Herald from allegations of bias in their coverage of the abortion debate. This factor of defence or response has been integral in characterizing certain statements as privileged. Gatley, p. 218, states:

… a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made.

This principle has also been articulated in case law: Netupsky v. Craig, 1972 CanLII 19 (SCC), [1973] S.C.R. 55, 28 D.L.R. (3d) 742, and Daniel v. Mount Allison University (1976), 15 N.B.R. (2d) 373 (Q.B.), and has been likened to the right of self-defence in criminal law: Linden, Canadian Tort Law, 3rd ed. (1982), at pp. 703-704. Courts are generally more receptive to a publisher who responds to a request, as opposed to one who volunteers the information: Brown, at p. 480.

[42]  Secondly, the person receiving the communication must have a corresponding duty or interest in receiving it. This element of reciprocity is essential: per Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334. In this case, the plaintiff was genuinely concerned about the problem he perceived, and he expressly asked for some response to his inquiries. Regardless of what the defendant actually said, there can be no doubt that the plaintiff had a very keen interest in receiving the communications. The issue of reciprocal interest was the impartiality of the Calgary Herald on the issue of abortion; it was questioned by Mr. O'Malley and defended by Mr. O'Callaghan. It forms the basis of all of the correspondence alleged to be defamatory in this action.

[43]  Thirdly, the response or answer to such an attack must be proportionate to the initial attack itself. A privilege will be lost if the defamatory remarks are entirely unrelated to or in excess of what is called for by the situation. Yet what constitutes "excess" is not to be presumed merely from any insulting language (Brown, at p. 523): "A court, however, will not be quick to condemn for excess, or be overly critical in their appraisal of the language used by a person to defend his or her reputation." But where self-defence becomes offence, the privilege will be lost. Such an excessive rejoinder may go to proving that the response made was malicious.

Accordingly, when a person is defamed, such a person may, without engaging in malicious response, counter the defamation with a strongly worded response so to reduce the negative impact and help to control the further spread of a harmful narrative.

Further Notable Details

Defamatory conduct may also constitute as the unlawful means element within other torts such as the tort of conspiracy to injure by unlawful means or the tort of intentional interference in economic relations.  Accordingly, defamatory statements may provide the fodder for other causes of action whereas such was confirmed by the Court of Appeal within the case of Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557 where it was said:

[35]  The statement of claim also pled conspiracy, even if obliquely, by alleging a pattern of conduct by the three appellants to remove AK as the SPM#1. The claim asserted that the defamatory statements they made about her were for the purpose of interfering with her economic relations. This is, in essence, what the trial judge ultimately found: an agreement between the appellants to defame AK in order to achieve their goal of getting rid of her.

[63]  Like the court in Correia, I would say that there may be aspects of the concept of “unlawful means” yet to be fully defined. In particular, the extent of actionability by the third party, or whether, as Lord Hoffmann suggests, this requirement is subject to any qualifications, need not be fully defined in this case. The unlawful means relied on by the third party - defamation, conspiracy and breach of contract - are all clearly actionable under private law.


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Further Reading

The topic of defamation of reputation is a very deep legal subject with many subtopics that can only be lightly touched upon within a webpage article.  Legal practitioners and scholars could spend hours discussing the various twists and turns that apply to the principles and concepts mentioned here.

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