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by Gil Zvulony, Toronto Defamation Lawyer
What is Defamation?
Defamation (sometimes referred to as defamation of character) is a statement to a third party about an identifiable individual that is false and damaging to the person’s feelings, pocket book, or reputation.
The test to determine whether a statement is damaging to one’s reputation is whether or not the statement would lower the opinion of the person in the minds of others or cause a person to be shunned or avoided or exposed to hatred, contempt or ridicule .
The test is an objective test and not a subjective one. In other words, it is not relevant if the victim thinks that the words are damaging, rather the relevant inquiry is what the average person would think.
In Ontario, in most cases, it is not necessary to prove that the defamatory statements were made maliciously.
Courts will first look at the natural and ordinary meaning of the words. The intention of the publisher is not examined when looking at the meaning of the words. In appropriate cases, secondary meanings or innuendos will be examined by the court.
In determining if a statement is defamatory, the context of the statement is important. Words that are defamatory in one situation will not necessarily be defamatory in another situation. Calling a doctor a “quack” would be defamatory while calling a professional clown a “quack” would generally not be defamation.
The plaintiff must prove that the defamatory statement is about him or her and that the statement was published.
What is the Difference between Libel and Slander?
Libel is a defamatory statement that is published or broadcast.
Slander is a defamatory statement that is spoken or of a more transitory nature such as a gesture or signs.
What is Not Defamation?
a. Statements that are damaging and true are not defamation. For example, a newspaper story about how a person was charged with an embarrassing crime can be very damaging to a person’s reputation, however if such a story is true, then it cannot be defamation. Similarly, “outing” a person who identifies himself or herself as a homosexual may not be defamatory, if the story is true.
b. False statements that are not damaging are not defamation. For example a statement that Prime Minister Harper has blonde hair and blue eyes, although false, is not damaging. Therefore, not every mistake in a publication will constitute defamation. The statement must be damaging as well as false.
c. A false and damaging statement about a large group of unidentifiable persons is not defamation. Defamation must relate to an identifiable person or persons. For example saying something false and damaging about “the directors of” a particular corporation is likely to be defamatory because the individuals are easily identifiable. However, saying something false and damaging about, for example, “the Canadian People” is not defamation because individual persons are not identifiable. In some cases, although not defamatory, false and damaging statements about certain groups could contravene human rights legislation.
d. Defamation of a dead person.
What is Cyber-Libel?
Cyber-libel is when someone has posted or emailed something that is untrue and damaging about you on the internet. The internet has created the easy ability for almost anybody to communicate with almost anyone. This ability has a dark side – the average person’s reputation or a small business’s hard-earned goodwill can be harmed in a serious way.
Unfortunately, cyber-libel is becoming more common. In the past, only famous people had libel and slander issues. Today, it is the common person who must deal with this issue. For example, a disgruntled consumer, an angry ex-spouse, a competitor, or a peddler of gossip can now “vent” their frustrations about their victim cheaply, easily, and seemingly anonymously. A Google search of the victim’s name usually reveals the poisonous words for anyone that is interested.
The harm to reputation and character is real. A malicious customer review by a competitor could destroy a small business. A false accusation of adultery on a social networking site could destroy a marriage. An allegation that someone is a “crook” could be read by a potential employer or business partner.