public_law_other_650.html

[Jim Choate <ravage@EINSTEIN.ssz.com>]

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   Libel and Slander
   
   
   Tape #650
     _________________________________________________________________
   
   On this tape I will discuss libel and slander. It is for your general
   information only. It is not legal advice. It will give a general
   outline of the law on the subject as it applies in Ontario. If you
   have a legal problem, you should talk to a lawyer.
   
   We all have the right to have our reputation protected against false
   statements made against us. This protection is given to us by the law
   of defamation. On this tape I'll talk about defamation in both its
   forms - libel and slander. Libel can be a crime, but this section of
   the Criminal Code is rarely used, so I'll talk about libel and slander
   only in their civil context - the person defamed suing the defamer;
   asking for money as compensation for the injury to his reputation.
   
   
   Generally speaking, a defamatory statement is one which tends to lower
   a person in the estimation of right-thinking members of society. For
   example, if someone calls you a cheat in your business dealings, you
   probably have a lawsuit against him. That is, you do if he says it to
   someone other than you. It's not enough that the statement be made to
   the person it's about. It has to be communicated to another.
   
   
   What's the difference between libel and slander? Broadly speaking, if
   the defamatory statement is made in some permanent form, such as a
   newspaper or a letter, then it's libel. If it's in a transitory form,
   such as a hand gesture or the spoken word, then it's slander. But a
   defamatory statement that's broadcast on radio or television will be
   libel, not slander, even though it's spoken and not written.
   
   
   In the past, there was a good reason to know the difference between
   libel and slander. Today, if you can prove that you have been
   libelled, and there is no good defence, then the law will presume you
   have suffered damages and will fix an amount as compensation for your
   loss of reputation. In other words, you do not have to prove damages
   for actual financial loss.
   
   
   For many years, in cases of slander, you had to prove actual financial
   loss before you would be awarded damages under the law. In part, this
   was because slanderous statements were not considered permanent and
   therefore would not have as great an impact as libellous words,
   gestures or portrayals.
   
   
   Today, under the Ontario Libel and Slander Act, the requirement to
   prove damages in slander cases has been removed in certain situations.
   Mainly, these include cases where words are chosen to call into
   question the reputation of a person in relation to that persons
   office, profession, calling, trade or business. Therefore, if you
   could prove that Bill told John you were a cheat and then John refused
   to enter into a contract with you because of the statement, you would
   be compensated for the loss of contract and reputation. You would have
   to prove it was Bill's intention to attack your business reputation,
   but otherwise, damages would be awarded outright.
   
   
   Unfortunately, the Ontario Libel and Slander Act does not remove
   completely the requirement to prove damage, in all slander cases.
   Therefore, it is important to discuss your case with a lawyer to
   determine how yours would be treated under the law.
   
   We said earlier that the law protects a person's reputation. But
   obviously this protection can have the effect of restricting other
   rights, such as free speech. So the law tries to balance these
   competing interests. In certain circumstances, even though a
   defamatory statement may have been made and a person may have suffered
   injury to reputation, other interests are considered more important.
   In those cases, the law provides certain defences that can protect a
   defamer from liability.
   
   
   The most common defences are: truth (known in law as "justification");
   absolute privilege; qualified privilege; and fair comment.
   
   
   The first is the easiest. A statement might well lower your
   reputation, but if it is the truth then anyone is free to say it.
   Additionally, if you consent to the statement being made, you cannot
   later argue you have been defamed.
   
   
   The second defence - that of absolute privilege - covers statements
   given in evidence at a trial, or made in Parliament, to give the two
   prime examples. And it extends to the fair and accurate reporting of
   those statements - the newspaper report of a trial, for instance. Our
   systems of justice and parliamentary democracy demand that in those
   situations participants must be free to speak candidly, without having
   to worry about risking a lawsuit for defamation.
   
   
   The defence of qualified privilege covers other situations. For
   instance - say a former employee of yours has given your name as a
   reference, so you get a call from someone who wants to hire him. He
   asks your opinion. You say: "Well, frankly, I always suspected he was
   stealing from me." That's an occasion of qualified privilege . You had
   a moral duty to give your honest opinion and the caller had a
   legitimate interest in hearing it. As long as you acted in good faith
   and said what you honestly believed you would have a valid defence to
   an action for defamation.
   
   
   Finally, there's the defence of fair comment. We are all free to
   comment freely - even harshly - on matters of legitimate public
   interest as long as our comments are made honestly, not maliciously,
   and are based on true facts. For example, say a columnist writes that
   an MP secretly holds shares in a company which has just got a large
   government contract. Then he comments that the MP is deceitful and
   should resign his seat. Well, if in fact the MP owns no shares in the
   company, then the columnist may be open to a lawsuit. But if the facts
   are true, that is the MP does own the shares, and the columnist
   honestly believes bases on those facts that the MP is deceitful and
   should resign, then he will have the defence of fair comment.
   
   
   If you intend to sue for a libel in a newspaper or a broadcast you
   must give notice to all those you intend to sue within six weeks of
   learning of the publication or broadcast, and you must specify in your
   notice the nature of your complaint, with specific reference to the
   actual words of which you complained. As well, you must commence your
   action within three months of learning of the publication or the
   broadcast. Failure to conform with either of these two steps will
   deprive you of any right to sue.
   
   In cases not involving newspapers or broadcasts, you must commence
   your action against the defaming party within 2 years of the words
   being spoken or written.
   
   
   Finally, there's the matter of apology. When a libel has been
   published in a newspaper or other periodical, or in a radio or
   television broadcast, the publisher or broadcaster can limit the
   amount of the damages the broadcaster may end up paying by publishing
   or broadcasting a full apology at the earliest opportunity. Not only
   newspapers and broadcasters can limit their damages by offering an
   apology before the action begins. Any defaming party can offer an
   apology in the hopes of having their damages reduced.
   
   
   The law of defamation protects your right to your good name. If a
   person makes a false statement to another to your discredit you can
   sue for damages. But because of other competing rights in our society,
   such as free speech and fair comment, there are cases where even the
   most defamatory statement will not give rise to an award of damages.
   If you think you have been defamed, you should talk to a lawyer.
   
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