Defamation

The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

A defamatory statement is one which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society. Suing for defamation offers the injured person legal remedies for such an injury to his reputation.

Defamation may go farther than just reputation and may also involve a loss of money. For example, if someone said that Doctor Smith was a quack, the doctor may have been defamed. He would probably lose both patients and money as a result.

A person can be defamed either orally or in print. If the statement is made orally, it is called slander, while a defamatory statement in writing or any public broadcast is called libel. Public broadcast includes radio, television, and films. In order for a statement to be libelous it need only reach any person other than yourself: a large audience is not necessary.

It is very difficult to sue for defamation and you will need a lawyer to assist you in court.

To prove slander, you must show that the statements were heard by a third party. A rude remark made only to you is not defamation if no third party heard it. It doesn’t matter whether the third party hearing it did so accidently or on purpose. For example, a court held that there was defamation when a secretary accidentally overheard a defamatory conversation between two men in an adjoining office. However it may not be defamation if the person making the statement took reasonable precautions to insure his or her comments were not overheard.

Mere name calling may not be defamation. The court will distinguish between a personal insult and an insult that attacks reputation in the community. Much depends upon the tone of voice, the manner of the conversation, and the reason the speaker made the statement.

It is not slander when someone makes derogatory remarks about a group so large that it is impossible to say the comment was aimed at one person. For example, the statement “all lawyers are crooks” would not be slander. Should the comment be aimed at the members of City Council, this could be slander. City Council as a group is not too large and it is obvious that the remark refers to specific individuals.

Sometimes a remark is made in such a way that although no names are mentioned, anyone could guess who was being talked about. This is slander. But note that there must be no questions about the identity of the person in these types of cases.

Defamatory libel is slightly more complex than slander. Every person who takes part in the preparation of the libel or distribution of it is responsible, regardless of the role he played. This includes the writer, artist, printer, editor and distributor. However, a suit is normally brought against the author and publisher. A person may become responsible if he lets someone else distribute or display libel when it was within his power and authority to prevent it.

An important fact to remember about libel is that it does not have to be intentional. For example, if a person communicates something he believes to be harmless and it turns out to be libelous, he is still responsible although he meant no harm. Take for example saying “I don’t trust Mr X”. You may not intend to defame Mr X yet people listening may take this as meaning Mr X is dishonest. This may injure Mr X’s reputation and that would be defamation.

There are defenses to a defamation suit, of libel or slander. These defenses include the truth, privilege, and fair comment. Saying you’re sorry afterward is not a defense, but may reduce the amount of money the judge awards to the victim.

If the defendant can prove his statements were true, it is not defamation. But proving the truthfulness of a statement can be difficult. You must have evidence and witnesses to prove that the defamation is true.

For example, the proof that a person is a thief is that he stole something. But if you call a person a series of nasty names, each and every one of these words must be shown to be true. If you cannot prove all of them, you have defamed that person. A minor error in your statement won’t prove defamation if the statement is true in substance. For example, if you say that someone was convicted of an offence and fined $150 with three months imprisonment, when it was actually two months imprisonment, the defense of truth would apply.

Certain groups have a privilege which allows them to make slanderous statements under specific circumstances without being held responsible. This is called Qualified privilege. Qualified privilege applies in limited situations where it is in the interest of society that the defamatory statement should be made with impunity. It also applies where the speaker has an obligation, legal, social or moral; to make the statement and the listener has a like duty to receive the statement.

Examples of those given Qualified privilege are Members of Parliament and of the Legislatures, when the statements are made in the House of Commons and the Legislatures. Someone speaking in a court proceeding could not be sued for defamation, provided the statements were relevant to the proceedings. Media covering public and government meetings or inquiries are also subject to qualified privilege so long as the coverage is fair, accurate and not malicious.

The final type of defense is fair comment. To make comments about public figures or events is everyone’s right. For instance, editors may write editorials without fear of a law suit, as long as their comments are fair. Nothing requires that all comments be favorable. One may criticize art, literature, drama or sports, but may not deliberately try to injure a person’s reputation when doing so.

In order for this defence to be available, it must be clear from the words and the circumstances, in which they were published, that they were intended as comment and not as statements of fact. The defence of fair comment is not available to a defendant if it is proved that he acted maliciously in making the publication.

To this point we have been discussing defamation as a civil wrong, that is, one private person suing another for damage resulting from the defamation. But defamatory libel can also be a criminal offence. Criminal defamatory libel is any matter published, without lawful justification or excuse that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person about whom it is published.

The Criminal Code provides a number of defences to a charge of libel. This is a serious offence and if you have been charged, you should, consult with a lawyer. In summary, defamation is usually a civil suit made by one person against another to recover damages for libel or slander. Defamatory libel can also be a criminal offence. In both cases, it is advisable to contact a lawyer. When defamation is proved, damage is presumed to have resulted. This applies both in slander and libel.

Defenses to a lawsuit include proof of the truthfulness of the statements, privilege and fair comment. Any action in defamation takes time and money and is not easy to prove, so you should consult with a lawyer before proceeding.