A business is built on its reputation. You’ll want to know, when is an online review defamatory, and what damages are available for defamation?
If you need legal advice from an Ontario Civil Litigation Lawyer, book your free legal consultation with Supply Law today.
*Disclaimer: this guide is for informational purposes only. It does not constitute legal advice nor create a solicitor-client relationship between the author and reader. As with all legal matters, a lawyer should be properly retained and consulted where legal advice may reasonably be considered necessary.
This blog post will cover the basics of defamation, including:
1. What is defamation?
2. Who can be liable for defamation?
3. What are the defenses to defamation?
4. How much are the damages for defamation?
5. Is there a legal way to get defamatory comments removed?
Ready? Here we go!
1. What is Defamation?
There are 3 elements the plaintiff needs to prove in an action for defamation:
While apparently simple, these necessary components have (unsurprisingly) generated a substantial amount of litigation.
A. Defamatory Words
The courts will determine whether words are defamatory on an objective standard. The court will ask whether the words, in the eyes of a “reasonable person”, would tend to lower the plaintiff’s reputation amongst others. The reasonable person is a fictional character that the courts created. The court presumes its reasonable person is ordinary, fair minded, lacking special knowledge, and not unusually suspicious or naïve. The ultimate question is whether, in the mind of this fictional person, the words would cause others to view the plaintiff with feelings such as hatred, contempt, ridicule, fear, dislike, or disesteem, with the result that their reputation is harmed. Defamatory words can involve an attack on a person’s professional reputation, appearance, morals, or anything else that would objectively tend to lower how people feel about another individual.
Note: What Is the Difference Between Libel and Slander?
Libel and slander are forms of defamation. In essence, libel is a defamatory statement in print form, whereas slander is usually spoken but may include other less permanent forms of communication such as sign language. Either may give rise to a claim for defamation. An important distinction is that libel (the written form) is actionable per se, meaning it is presumed damages flow from the defamation, whereas in the case of slander, actual loss must be proven. See damages below.
B. Reference to the Plaintiff
Defamation is said to be a personal claim, which is why the words need to refer to the plaintiff. This is also why harmful statements made generally towards a group of people are unlikely to be considered defamatory if the group is sufficiently broad. For instance, the words, “all of the property managers in this city are greedy!” would likely not give rise to an action by a management company (even if they operated in the complainant’s city). However, a statement like, “the tenants in this building are a nightmare!” may be actionable, if the statement can be understood as being made against each individual tenant. Again, this analysis will depend on what the reasonable person would think. Where the statement is more general, factors such as the size and composition of the group, and nature of the allegation itself, are relevant. To that point, an individual does not need to be specifically named, and words like “the manager” may be sufficient if recipients understand them as directed at the plaintiff.
Note: Can Corporations Be Sued for Defamation?
Yes. The fact that defamation is considered a personal claim, doesn’t mean only people have reputations capable of being harmed. Artificial entities like corporations or partnerships may equally advance claims for defamation. Similar to real persons, these entities can be defamed (even without being specifically named) as long as the identity of the organization can reasonably be inferred. For instance, a reference to persons controlling the entity like a well-known director or CEO such as Tim Cook may give rise to a claim by Apple.
C. The Words Were Published
The final requirement for a defamation claim is that the words must be published. “Published” in the case of defamation means the words are conveyed in some recorded form whether that be via newspaper, fax, email, radio, or even via a hand delivered letter. The mode of delivery is not often in dispute. What matters most is that the words were published and conveyed to a single third party other than the plaintiff. To that effect, it has been held that communications like a post card (or fax) that can be easily read by third parties in the course of being delivered, can constitute defamation even though the communication was merely intercepted by the third party. In certain cases, the publication will be deemed to have occurred by statute, such as in the case of a newspaper. However, there is no presumption that internet postings have been published. So, in the case of an online blog post or review, counsel will still have to demonstrate publication has in fact occurred (although in most cases it will be obvious).
2. Who Can Be Found Liable for Defamation?
Anyone Who Participates in the Publication May be Liable
While publication can take the form of a sealed hand delivered letter mailed to a third party, in many circumstances others are necessarily involved in the publication. This is particularly true where the defamatory words are directed to the public at large. At law, anyone who participates in publishing the defamatory words such as a newspaper editor, printer, or vendor, may be liable for defamation. The original author will be primarily responsible for the defamatory words. However, where a third-party publisher has been put on notice that it has published defamatory materials, and that party makes some voluntary choice which results in the defamatory words being conveyed to others, the third party will become liable as well.
When Does a Third Party’s Publication Become Voluntary?
Voluntary choices can involve publishing the words at the onset, or failing to take some action to remove the defamatory statements. Based on this principle, an internet service provider, blogging platform, chat room operator, and even social media user, may all be considered a publisher of defamatory materials where they have received notice of the defamatory statement and failed to remove it. The reason notice is required is that publishers may not be liable for “innocent disseminations”. Therefore, where the publisher has knowledge the statements are defamatory and publishes the statements anyways (or fails to remove the statements after the fact) they will no longer be considered innocent, as they can now be seen as participating in the publication (and therefore defamation) by choice.
3. What Are the Defenses to Defamation?
Even where all of the elements of a valid claim for defamation are met, the defendant has several arguments or defenses which they can advance to avoid liability. In general, these defenses stem from the view that allowing unfettered defamation claims would hinder the functioning of democratic society. Defences to defamation include:
a) Truth of the Statement – There is no defamation where the defendant’s words are true or substantially true. The defamatory words will be presumed to be false by the courts and the onus rests on the defendant to prove on a balance of probabilities (the civil burden of proof) that the words were, in fact, substantially true.
b) Fair Comment – The defence of fair comment is available to any defendant, at any time, and firmly grounded on the right to free speech. There are four elements to this defense. The defendant must show that the defamatory statement:
i. Was a matter of public interest (personal and business affairs are not usually public)
ii. Was based on facts (the facts must be substantially true and not a rumour)
iii. Was recognizable as comment (meaning an expression of opinion), and
iv. Was fair at the time of publication (an analysis of whether the comment was fair involves asking if, objectively, any person could honestly express such a comment on the facts).
However, despite the defendant being able to prove these elements, the fair comment may still be defamatory where the defendant published the materials with express malice.
c) Privilege – There are a variety of situations where no defamation can be found based on grounds of privilege. These include statements made in parliament and in various aspects of the legal system so that statements published in a statement of claim or contained in a judicial ruling are not actionable in defamation.
d) Defamatory Statements of Fact in Media – Journalistic works may be protected where defamatory statements are published in an investigative piece or similar work which serves the public interest. This is true despite the publisher being unable to prove the truth of the defamatory statement in court as a defense. The reason being, is that often journalists will be unable to prove the truth of the statement without revealing a confidential source. Again, even if the publication may be defamatory, the ability of journalist to report on matters of public interest is recognized as a foundation of democracy and Canadian Charter rights.
e) Consent to Publication Given by the Plaintiff – no one can bring a claim for defamation if they have consented to the publication being made, either expressly or through being implied from the circumstances surrounding the publication.
Note: What is the Limitations Period for Defamation?
There is a statutory requirement to provide notice prior to initiating legal proceedings in the case of claims against newspaper publications and broadcasters in accordance with Ontario’s Libel and Slander Act. Per the Act, notice must be given within 6 weeks from the time the libel came to the plaintiff’s attention. This is to provide an opportunity for the publisher to correct any defamatory materials, and to resolve the issue without the necessity of legal proceedings. The actual action against a newspaper or radio broadcaster must then be brought within 3 months of the defamatory publication coming to the attention of the plaintiff. This requirement has been held to apply to internet based newspaper and radio publications but not other websites generally. In those situations, where the publisher cannot be characterized as a radio or newspaper publisher or broadcaster, the limitations period should be the standard 2-year time limit from discovery of the claim in accordance with the Limitations Act though there is some debate here.
4. How Much Are the Damages for Defamation?
In the case of defamation, the court may make an award of general damages for the injuries the plaintiff has suffered such as, loss of dignity, and harm to reputation. These damages are available “at large” meaning the plaintiff can receive compensation beyond the losses they are able to prove. This is due to the difficulty in measuring non-pecuniary losses (damages that are not easily quantifiable, such as pain and suffering) and serve to exonerate the plaintiff’s reputation.
In order to determine the amount of damages the court will consider:
- the conduct of the plaintiff
- the plaintiff’s position and standing
- the nature of the defamation
- the mode and extent of publication
- the absence or refusal of any retraction or apology made by the defendant, and
- the defendant’s conduct from the time when the defamatory statements were published until the court delivers the verdict (this may include before the action, after the action, and during the trial)
Is there a limit to an award for defamation?
A Court Ordered Injunction Can Stop the Publication of Defamatory Statements
Generally, an injunction is an order from the court that restrains a defendant from continuing with some conduct. In the case of defamation, this can include an order that the defendant remove defamatory statements (i.e. to cease actively publishing) or prohibit them publishing further statements which harm the plaintiff’s reputation. However, the court will be reluctant to grant an injunction prior to trial except in the clearest cases of defamation. Following a successful defamation claim, the court may also grant a permanent injunction to prevent defamatory statements being made in the future. This remedy is usually available where it is likely the defendant would continue to publish further defamatory statements, and it would be unlikely for the plaintiff to be compensated for their injuries (such as where the defendant has limited assets). Though, as this remedy may have the potential to incidentally interfere with a defendant’s right to exercises free speech, permanent injunctions will not usually be granted.
Where the grounds for starting a claim for defamation are arguably present, third party liability for publishers may provide strong leverage to persuade consumer review websites to remove defamatory comments. Faced with a demand to remove legitimate defamatory statements, few publishers will come to the conclusion that the benefit of continuing to host defamatory statements outweighs the risk.
If you need legal advice from an Ontario Civil Litigation Lawyer, book your free legal consultation with Supply Law today.