September 16, 2016

Defamation Can Be an Unintended, Expensive Mistake

We all likely have someone in our lives who we don’t like or even hate. But beware of speaking ill or spreading rumours about that person because you might get sued.

You have probably heard of “defamation.” But, just in case you haven’t, here is the legal definition:

  • Defamation is a communication made to another person about a different person that hurts that person’s reputation.
  • If the communication is spoken, then the defamation is called “slander.” If the communication is written, it is called “libel.”

If you defame someone, then you can be sued. In cases of libel, or some more serious cases of slander, the victim doesn’t have to prove that he/she suffered financial loss from your remarks – a court can presume that those losses were suffered and make you pay!

What is Considered Defamatory?

So, what kinds of things are considered defamation? What can you say and, alternatively, what can you not say?

It isn’t possible to provide an exact list of what is and isn’t defamatory. A defamatory statement will generally be one that lowers someone’s reputation in the eyes of others. A few examples of statements that could lower your reputation are someone:

  • accusing you of committing a crime;
  • accusing you of having a (serious) contagious disease;
  • making negative comments about your business; or
  • accusing you of cheating or adultery.

Also, these types of comments/remarks must be made to a third party. Otherwise, there is no claim.

The law is only interested in protecting your reputation and not your feelings. A personal insult, like someone calling you a jerk, may hurt your pride, but it would not necessarily be defamatory unless it was heard by a third party and could cause that third party to think less of you.

Social Media and Defamation

For those engaged in social media, be warned that even permission-based networks are considered public spaces from a defamation perspective. So if you say something defamatory about someone else on Facebook, it might come back to haunt you.

Intention Isn’t Necessary

Bad intentions are not necessary. It doesn’t matter whether or not you intended to harm another person’s reputation. If an individual feels they were defamed before another party, you can be sued.

Defences to Defamation

The broad definition of defamation might make you feel that you can’t make negative comments about another person at all.  This isn’t the case. There are “defences” to a defamation lawsuit.

The Truth

For example, one of the most common defences against a defamation lawsuit is “telling the truth.” This means that you can make a comment that hurts someone’s reputation as long as it is true.

Fair Comment

Another exception or defence is for journalists to comment, even harshly, on matters of public interest, such as government issues. This exception or defence is called “fair comment.”

Job References

Yet another exception or defence applies to job references. If a potential employer calls a person’s previous employer and receives negative comments about the former employee, then a claim for defamation cannot follow as long as the previous employer or reference acted honestly, in good faith, and without any ill-will or hatred.

Commencing a Claim for Defamation

How often are people actually sued for defamation? Rarely. Lawsuits are expensive, particularly when defamation lawsuits MUST be commenced in Supreme Court (they cannot be commenced in the cheaper, more straightforward Small Claims Provincial Court). There’s also a time limit: defamation cases must commence within two years of the defamation incident.

Balancing Reputation with Freedom of Expression

The law surrounding defamation tries to strike a balance between protecting your reputation and freedom of expression. It’s a hard balance to strike. While defamation cases are few and far between, they do occur. So think twice before you say something negative about someone in public.

If you think you have been defamed, we invite you to call us for legal advice about your options. Court is not always the only answer to these situations. If you would like more information please contact a member of our litigation team.

Jeff Zilkowsky is a litigator with CBM Lawyers LLP. He can be reached at 604-533-3821 or [email protected].

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.