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Defamation

What Is Defamation?

The law of defamation has evolved over centuries of decided cases, which we refer to as the common law, and part of this area of law is encoded in the Ontario libel and slander act. Slander is the deliberate use of words to belittle a person. Libel is the publishing of the words of slander in a newspaper or an electronic broadcast. When applying the general principles of the law of defamation to a particular set of facts, a person must weigh the delicate balance between protection of reputation and safeguarding of freedom of expression. The courts must achieve a proper balance between the important social value of protecting personal reputation from damage and the equally important charter value of freedom of expression.

What is the legal theory of a lawsuit for defamation?

A defamatory statement is one, which tends to injure the reputation of a person. Also it's a statement which tends to lower that person in the estimation of right-thinking members of society generally and, in particular, to cause the person to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The very essence of a defamatory statement is its tendency to injure reputation, which is to say all aspects of a person's standing in the community. The threshold test is whether the statement or broadcast is defamatory either through its natural and ordinary meaning or through innuendo. Once found defamatory, there is an automatic inference of malice which the defendant must counter with one of the common law defenses of justification or truth, qualified privilege, or fair comment. if a common law defense is made out, it can be lost by proving actual or express malice.

What is involved in a lawsuit for defamation?

A lawsuit for libel against a newspaper or electronic broadcaster must be started by delivering written notice within six weeks of learning of the publishing. To show defamation, the plaintiff in a lawsuit has the onus to prove three elements:
1. That the words complained of were published.
2. That the words complained of refer to the plaintiff.
3. That the words complained of, in their natural and ordinary meaning, or through innuendo, are defamatory of the plaintiff.
If the defamation is not clearly apparent from the words and statements, the plaintiff may claim that the defamation arises from inference or implication. This is called "false innuendo". The plaintiff must clearly detail in his/her claim the meanings that the words complained of are alleged to bear. These "stings" of the publication are then responded to by the defendant's referring to the common law defenses and the evidence.


How does a court determine whether certain words are defamatory?

Slander is the deliberate use of words to belittle a person. Libel is the publishing of the words of slander in a newspaper or an electronic broadcast. In a lawsuit for libel and slander or defamation, a court will determine the prima facie meaning of words by applying an objective test based on the natural and ordinary meaning of the words as would be inferred by a reasonable and fair-minded listener or reader who has no special knowledge of the facts. The plaintiff must prove that an ordinary reasonable person might have understood the article in a defamatory sense. It is not necessary to prove that persons, to whom the article was published, did in fact, think less of him or her. A court will ask: what would ordinary viewers infer as the meaning of the words, given the viewer's general experience and knowledge of public affairs?


Does the form of media publication have any bearing in a lawsuit for slander or libel?

In the law of defamation, television has the potential of a far greater impact than print media because of television's audio-visual nature. The actual words used may be less important than the context and manner of their presentation during the program. For example, voice intonation, visual background, facial expression and gestures can dramatize the so-called "facts" and convey a different impression than one might get from a written statement of the "facts". Therefore television's images, sounds and sequence contribute to the overall impression, and are as relevant as the actual words used because the content or meaning of those words can be distorted. Television or radio broadcasts can be ephemeral and fleeting as opposed to newspaper articles that can be kept, reviewed and analyzed over an extended period. However the audio-visual effects of the electronic media can be more important than the actual words used. In radio the intonation, tone of voice and inflexion can make innocent words defamatory. In television a voice combined with background effects, scenery, music or images can change innocent words and flagrantly ridicule and humiliate a person's reputation.


In the law of defamation, or slander and libel, the words complained of may be capable of more than one meaning, so how does the court decide which meaning applies?


At the end of a defamation trial and after all of the evidence is in; the judge will decide if the words complained of, when considered in the context in which they were presented, would reasonably lower the plaintiff in the estimation of an ordinary, objective, reasonable member of society who, with common sense, is reasonably thoughtful and informed, but who does not have an overly fragile sensibility. The harshest and most extreme meaning will not be selected because the test assumes a reasonable and fair-minded audience rather than one that is looking to the question of the plaintiff's reputation. What an ordinary man would infer without special knowledge is the natural and ordinary meaning of the words in a defamation lawsuit. Sometimes it is not necessary to go beyond the words themselves such as where the plaintiff has been called a thief, murderer or liar. However, the sting is not so much in the words themselves as in what the ordinary man will infer from them - this too is regarded as part of their natural and ordinary meaning.


What is the basis of the law of defamation or libel and slander, and how can a person characterize defamatory remarks in general?

A person's reputation for honesty and integrity is a precious commodity and when that reputation is put into question the results can be devastating. Allegations of conflict of interest are defamatory, and similarly so are accusations of a lack of integrity, a lack of professionalism, a lack of concern for patients or clients, and a lack of credibility. Demeaning a person in the eyes of his or her colleagues is sufficient cause for action, as is irreparable damage to the plaintiff's reputation in the larger community. Context is crucial in determining the defamatory sense of words, and an alleged defamatory statement cannot be considered apart from the circumstances in which it is made. A judge will go beyond a legal analysis of the written words. He or she will take the television or radio broadcast as a whole in determining whether it is defamatory. The words, within the context of the entire broadcast, must be capable of bearing an adverse meaning in order for the plaintiff to succeed.


If you are a defendant in a lawsuit for defamation, or libel and slander, how can you defend yourself for the defamatory remarks you have made?

The defense of justification or the truth is a complete defense, and if the facts, which make up the defamatory material, are true, then a plaintiff's action cannot succeed. The press and other media are entitled to communicate true facts. A second defense of conditional or qualified privilege occurs when the untrue and defamatory statements are fairly made by a person in the discharge of some public or private duty (whether legal, social or moral), or for the purpose of pursuing or protecting some private interest, provided such statements are made to a person who has some corresponding interest in receiving it. A third defense of fair comment protects words that are prima facie defamatory provided they are comments based on true facts made honestly without malice in reference to a matter of public interest. This defense is based upon the values of freedom of speech. No matter how prejudiced, extreme or biased the opinions are, the test is whether a fair-minded person could hold them based on the proven facts.


If you are a defendant in a lawsuit for defamation, or libel and slander, what is an example of the defense of conditional or qualified privilege in a defamation lawsuit?


Conditional or qualified privilege occurs when the person to whom a statement is made has a special interest in learning the honestly held views of a second person, even if those views are defamatory of a third party and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged, such as statements made by judges or advocates or witnesses in the course of judicial proceedings. To use the defense of qualified privilege in a defamation lawsuit, the defendant must have acted in good faith and responsibly produced a fair and balanced program or article. Those publishing or broadcasting defamatory statements must properly and thoroughly investigate the facts beforehand. If what is broadcast or published deliberately omits information contrary to the essential message of the program or article, then good faith cannot exist. Qualified privilege can attach to a media communication published to the world at large if it is published in the context of a social or moral duty to raise the underlying issue. By presenting a biased and slanted view, which is known to be inaccurate or simply untrue, no public interest is served.


What is the defense of fair comment?

The defense of fair comment protects words that are prima facie defamatory provided they are comments based on true facts made honestly without malice in reference to a matter of public interest. this defense is based upon the values of freedom of speech. no matter how prejudiced, extreme or biased the opinions are, the test is whether a fair-minded person could hold them based on the proved facts. opinions, criticisms and comments can be partial, biased, obstinate, prejudiced, wrong, rude, severe, extravagant, exaggerated, colorful and discourteous. Opinions, criticisms and comments must be fair so that a fair-minded person, looking at the same facts, could come to the same defamatory opinion about the plaintiff. One of the key elements of the defense of fair comment is fairness, and if the judge concludes that the comment is unfair, the defense fails. Fairness requires that viewers or readers be presented with both sides of the argument in a balanced way. Omitting key information or deliberately failing to provide adequate opportunity to a plaintiff to accurately present his or her views voids the defense of fair comment. No comment can be fair if it is based upon facts, which are invented or misstated.

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