Canadian Tort Law/Defamation

Libel and Slander

Libel is the writing of something that one knows to be untrue or shows reckless disregard for whether it was true or not, which causes harm to the victim's reputation. Slander is to do the same thing, only orally instead of in writing. While separate torts, in Canada they are often conceptually brought together under the name of "defamation" or "defamation of character."

An essential element of defamation is that it brings the defendant into hatred, contempt, or ridicule. Therefore, a third party must have heard or seen the defamatory material. The defamatory material must be aimed at the plaintiff (e.g., "all lawyers are incompetent" would not be a defamation of any particular lawyer). There must usually also be real harm to a reputation. An imagined slight that only hurts the feelings of the victim, while causing no actual lowering of esteem in the eyes of others, is not defamation.

Another variation of defamation is the intentional speaking or writing of something that may be true, but with the sole purpose of causing harm to the victim's reputation. For instance, revealing that the victim has a debilitating disease may be defamation, if it was done solely to hurt the person's reputation, can be defamation. Therefore, "truth" is not always a complete defence to defamation in Canada (this is especially so in Quebec; other provinces are more likely to find truth to be a complete defence.)

Another defence to defamation is privilege. Some writing and speech has "absolute privilege", that is, in no circumstances can the author be sued. For instance, Members of Parliament have absolute privilege while in the House of Commons, as do court judgments. "Qualified privilege" is where the speech or writing is an honest opinion expressed for non-malicious reasons. For instance, a financial adviser gives a negative assessment on a company based on faulty information that he nonetheless thought was accurate does not defame the company. Closely related to "qualified privilege" is "fair comment", where people are allowed to express honestly-held opinions on issues of public interest.