Don’t You Lie On Me: Defamation in the Digital Age

In the digital age, information is produced at a rapid rate and is shared instantly across the globe through the internet.  The risk of defamation today is far more prevalent (and damaging) than it ever has been before.  But defamation has been around for centuries and is certainly nothing new.  What exactly is defamation?

In Ontario, the law of defamation protects a person’s reputation from being wrongfully damaged. Defamation consists of any falsely written, printed or spoken words that harm another person’s reputation. If this has happened to you, then this may serve as suitable grounds to sue for damages (money).

To be clear, defamation law does not protect one’s feelings. Instead, it protects from statements made that makes others think less of the person. Yet, protecting someone’s reputation must strike a fair balance with the protection of free speech – a fundamental right.¹ Balancing these competing rights leads to some uncertain situations where the law may ultimately favour a freedom of expression claim in the case of possible defamation, despite the harm that a defamatory statement may have caused to your reputation.

In the Supreme Court of Canada case of Grant v. Torstar Corp.², the Court confirmed a three-pronged test in establishing defamation:

1. that the words used were defamatory, in the sense that they would tend to lower your reputation in the eyes of a reasonable person;
2. that the words in fact referred to you; and
3. the words used were communicated to at least one person other than you.

It is important to know that the law of defamation varies in each province (and for that matter, each country). In Ontario, defamation legislation is found within the Libel and Slander Act. There are two categories of defaming statements that may be relied upon: libel and slander.

“Libel” consists of any written or printed words or any visible or audible matter recorded in any form of a more or less permanent nature. Some examples are letters, e-mails, newspapers, films, television, radio broadcasts as well as statements on social media.

“Slander” consists of spoken words or other transitory forms of communication that leave no permanent record, such as sounds, looks, signs or gestures.

Clearly, the scope of defamatory statements is very wide. Cases are assessed on a case by case basis, according to the evidence.  Nevertheless, there are also defences to an action for defamation. Defences include:³

1. That the impugned statement made was true;
2. That the impugned statement was protected by privilege;
3. That the impugned statement was a fair comment, which means that the
   statement was a non-malicious opinion about a matter of public interest; and
4. That the impugned statement was responsible communication on matters of
   public interest.

Your reputation is important in all aspects of life, whether socially or professionally; whether personally or for your business. Once harmed, your reputation can be incredibly hard to restore. Defamation is a unique area of law. If you feel that you have been defamed, your best option is to consult with a lawyer who practices in this area of law.

1 Cherneskey v. Armadale Publishers Ltd. (1978), 1978 CarswellSask 103 (S.C.C.) and Grant v. Torstar Corp. (2009), 2009 CarswellOnt 7956 (S.C.C.).

2 Grant v. Torstar Corp. (2009), 2009 CarswellOnt 7956 (S.C.C.) at para 28.

3 Cherneskey v. Armadale Publishers Ltd. (1978), 1978 CarswellSask 103 (S.C.C.) and Grant v. Torstar Corp. (2009), 2009 CarswellOnt 7956 (S.C.C.).

*This article is for general information purposes and does not cover all aspects of defamation law. Consult with a lawyer*