In modern times, publications, reviews, and profiles for both individuals and businesses are increasingly found online, causing defamation law (often called “libel and slander law”) to become ever more relevant and important. This is a particularly important area of law for those involved in online businesses as well as individuals with a significant online profile. In order to understand if you may have a defamation claim, it is helpful to know the basics of defamation.
Defamation Explained
In general, defamation refers to a communication about a person or business that is untrue or unwarranted and causes harm to their reputation and libel and slander are the specific forms of defamation: libel is a written communication; and, slander is a spoken communication. Where a case of defamation can be proven, a claimant may seek compensation for, among other things, the harm to their reputation and quantifiable losses, such as business losses.
Litigating Defamation
In a defamation case, generally what must be shown in order for a plaintiff to prove that a statement was defamatory is the following:
A statement was made that would have the effect of lowering the reputation of the claimant in the eyes of a reasonable person;
The statement refers to the claimant; and,
That statement was published to at least one other.
Notwithstanding the above, it is also important to recognize that a person is permitted to make such statements in appropriate circumstances. In fact, many defamation cases are decided on the issue of whether a defendant’s statement was permissible in the circumstances (also known as defences). Some defences in defamation cases include:
Truth or justification – this is essentially as it sounds;
Fair Comment – this protects the expression of certain opinions based on proven facts; and,
Qualified privilege – this provides certain circumstances in which a person is permitted to speak freely in exercising a duty.
Of course, the specific elements of a case, whether from the claimant’s perspective or the defendant’s, are more nuanced than the brief summary written above. Further, there are additional defences that are open to a defendant to argue, depending on the circumstances.
Recent Defamation Law Case Examples
To help understand the types of issues that can lead to defamation litigation, consider the following examples of recent cases that have gone before the courts:
Posting a negative review of a business online;
Writing something negative about a person’s reputation on a social media platform (for example, Facebook or Instagram);
Public comments made about a professional in front of his or her colleagues or actual or potential clients; and,
Journalistic publications.
SOCIAL MEDIA AND THE LAW
Social media; nearly all of us use it in some way shape or form. It has allowed us to share special moments with our friends and family, keep in touch with old acquaintances, keep up to date on sports, news and politics, and market our businesses. Although social media is a relatively recent phenomenon, its use has become so widespread that people can now reach large audiences with relative ease and simplicity. In this sense, it gives its users a great deal of freedom and power, which can be a double-edged sword in that it largely allows users to rightly express themselves as they see fit, but it can also allow for harmful public communication. Some, if not all, social media platforms regulate the content on their platforms and provide guidance for their users to report or flag inappropriate posts. But what if this kind of regulation is not enough? What if a harmful post has been removed but the harm has already been done to you or your business? Depending on the nature of the issue at hand, further action may be appropriate. If, for example, there is a legitimate threat of harm or violence being made, law enforcement authorities may need to become involved. Alternatively and more likely, the matter may be litigated before the courts. If litigation is pursued, a victim of defamatory statements may seek a monetary award as well as an injunction to prevent such statements from being made.
If you have been the subject of a possible defamatory publication or you have been accused of having defamed someone, please contact our office to set up a consultation to discuss your options.