Nunatsiaq Online
COMMENTARY: Around the Arctic July 21, 2016 - 2:30 pm

Legal Ease, July 21

Libel, Slander and Defamation

JAMES MORTON

I often have calls from people saying they want to sue for libel or slander.

Both are valid claims and can lead to large damages, but they are not available just because someone says something mean.

The key issue in either claim is an impact on a person’s reputation in the eyes of a reasonable person. That means someone other than the person disrespected must have heard or read the negative comments. It also means the hurt feelings of the person disrespected are not the real issue for the court.

First, let’s define some terms.

Slander is a verbal statement that brings someone’s reputation into disrepute. It’s something someone said.

Libel is a written statement that hurts someone’s reputation. Something said in a chat room online, if seen by others, is libel.

Defamation is a word that includes both slander and libel.

Just last year the Court ruled:

• The tort of defamation requires the plaintiff to prove three elements:

(1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(2) the words in fact refer to the plaintiff; and

(3) the words were communicated to at least one person other than the plaintiff.

As can be seen from this quotation someone else has to read or hear the defamation before any claim can be made.

So if someone says to me, behind closed doors where no one else hears, “James, you are a thief,” there is no defamation because no one else heard the statement.

A private email to me, copied to no one else, saying that I am, say, a child molester, is not defamation because no one else got the e-mail.

Now in both cases the statements would clearly be defamation if they were repeated to other people. They obviously would lower my reputation in the eyes of reasonable people. But if no one else learned of them, there would be no claim.

There are many defences to defamation claims.

Some are fairly obvious — the defendant can deny saying or writing the defamatory statements. That’s more common now in the days of Internet chat rooms with anonymous posting.

Other defences are a little more subtle.

Truth is a defence. So if someone tells the world I am a thief and, in fact, I am a thief, I cannot really complain.

Another defence is something called “privilege.” You can, for example, say anything at all in Parliament and no one can ever sue for it.

Witnesses at a trial can never be sued for defamation no matter what they say. (They can be prosecuted for perjury or held in contempt by the court – but they can’t be sued for defamation.)
More generally, if you say something to someone who is entitled to hear it you cannot be sued unless you say it maliciously.

An example may help – someone contacts me to ask about whether Becky is a good babysitter. The person is asking because they want Becky to look after their kids.

If I reply “she’s a drunk,” even if that’s not true, I cannot be sued unless I said it on purpose to hurt Becky – this is called qualified privilege.
As you can see, defamation is a bit complicated. But if someone said bad things about you to others, they may well be liable to you for damages.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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