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Practice Area Definition

Defamation and Media Law Definition

Defamation and Media Law involves two separate, but related, areas of practice. Most important is defamation law, which is a cause of action designed to protect and vindicate a person’s reputation. There are two types of defamation, libel, which is written, and slander, which is spoken. In common-law Canada, defamation is governed by long-established common law principles, but there is provincial legislation in most of the provinces, such as the Ontario Libel and Slander Act, that also governs some aspects of defamation law. Canada is generally considered a “plaintiff-friendly” defamation jurisdiction as it is easier for plaintiffs to establish defamation compared to jurisdictions such as the United States. However, damage awards for defamation tend to be relatively small in Canada compared to other jurisdictions. Defamation is considered a fairly technical area of practice that has more strict pleading rules than other causes of action.

In order to succeed in an action for defamation, the plaintiff must prove: that the words in question would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; the words referred to the plaintiff; and the words were communicated to at least one other person than the plaintiff. Falsity and damages are presumed. The defendant has the onus of establishing a defence to the defamation claim, such as truth or justification, absolute privilege, qualified privilege, or fair comment. Absolute privilege refers to occasions when individuals have absolute immunity from defamation claims, such as statements made in the legislature or in court. Qualified privilege refers to a person acting under a legal, moral, or social duty to communicate the impugned information to a person who has a corresponding duty or interest in receiving the communication, such as a regulatory body.  Fair comment applies when words are expressions of opinion on a matter of public interest. Journalists have an additional defence, responsible communication, relating to fair and responsible reports on issues of public interest. Other than truth, malice, or ill-will can defeat these defences.

Before or after trial, plaintiffs can seek injunctions to have defamatory material removed from publication or posting. Such injunctions can be quite broad, including providing that that the defendant cannot publish anything about the plaintiff by any means. Interlocutory injunctive relief for defamation, because of its interference with freedom of expression, is considered an extraordinary remedy and is only granted in the clearest of cases. Once the defendant has been found liable for defamation, injunctive relief is more easily obtained if the plaintiff can show the defendant will continue to publish defamatory statements or where there is a real possibility the plaintiff will not receive compensation.

The proliferation of electronic communication has introduced new issues into the law of defamation. One of the most important is the question of when Canadian courts can take jurisdiction over defamation claims where the defendant is located in another jurisdiction. Recent decisions from the Supreme Court of Canada have determined that it is sufficient that defamatory material is read or downloaded in Canada. There is no requirement that the communication be substantially published in Canada. Therefore, Canadian courts take a liberal approach to defamation jurisdiction. However, a plaintiff’s damages may be affected by the decision to commence an action in a jurisdiction where a relatively small number of people read or downloaded the publication.

Regarding the media, in most provinces, there are strict notice requirements and shorter limitation period when dealing with defamation actions against media defendants. There are still questions about the scope of the application of these statutory requirements to non-traditional media and electronic publications. Media law also refers to non-defamation related issues involving the media, such as the protection of sources and public access to and reporting on the court system, particularly publication bans. Publication bans create a conflict between freedom of expression and the right of an accused to a fair trial and are consequently the subject of much litigation in high profile cases.

Brian N. Radnoff
Lerners LLP

Lerners LLP logo

Defamation and Media Law involves two separate, but related, areas of practice. Most important is defamation law, which is a cause of action designed to protect and vindicate a person’s reputation. There are two types of defamation, libel, which is written, and slander, which is spoken. In common-law Canada, defamation is governed by long-established common law principles, but there is provincial legislation in most of the provinces, such as the Ontario Libel and Slander Act, that also governs some aspects of defamation law. Canada is generally considered a “plaintiff-friendly” defamation jurisdiction as it is easier for plaintiffs to establish defamation compared to jurisdictions such as the United States. However, damage awards for defamation tend to be relatively small in Canada compared to other jurisdictions. Defamation is considered a fairly technical area of practice that has more strict pleading rules than other causes of action.

In order to succeed in an action for defamation, the plaintiff must prove: that the words in question would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; the words referred to the plaintiff; and the words were communicated to at least one other person than the plaintiff. Falsity and damages are presumed. The defendant has the onus of establishing a defence to the defamation claim, such as truth or justification, absolute privilege, qualified privilege, or fair comment. Absolute privilege refers to occasions when individuals have absolute immunity from defamation claims, such as statements made in the legislature or in court. Qualified privilege refers to a person acting under a legal, moral, or social duty to communicate the impugned information to a person who has a corresponding duty or interest in receiving the communication, such as a regulatory body.  Fair comment applies when words are expressions of opinion on a matter of public interest. Journalists have an additional defence, responsible communication, relating to fair and responsible reports on issues of public interest. Other than truth, malice, or ill-will can defeat these defences.

Before or after trial, plaintiffs can seek injunctions to have defamatory material removed from publication or posting. Such injunctions can be quite broad, including providing that that the defendant cannot publish anything about the plaintiff by any means. Interlocutory injunctive relief for defamation, because of its interference with freedom of expression, is considered an extraordinary remedy and is only granted in the clearest of cases. Once the defendant has been found liable for defamation, injunctive relief is more easily obtained if the plaintiff can show the defendant will continue to publish defamatory statements or where there is a real possibility the plaintiff will not receive compensation.

The proliferation of electronic communication has introduced new issues into the law of defamation. One of the most important is the question of when Canadian courts can take jurisdiction over defamation claims where the defendant is located in another jurisdiction. Recent decisions from the Supreme Court of Canada have determined that it is sufficient that defamatory material is read or downloaded in Canada. There is no requirement that the communication be substantially published in Canada. Therefore, Canadian courts take a liberal approach to defamation jurisdiction. However, a plaintiff’s damages may be affected by the decision to commence an action in a jurisdiction where a relatively small number of people read or downloaded the publication.

Regarding the media, in most provinces, there are strict notice requirements and shorter limitation period when dealing with defamation actions against media defendants. There are still questions about the scope of the application of these statutory requirements to non-traditional media and electronic publications. Media law also refers to non-defamation related issues involving the media, such as the protection of sources and public access to and reporting on the court system, particularly publication bans. Publication bans create a conflict between freedom of expression and the right of an accused to a fair trial and are consequently the subject of much litigation in high profile cases.