Defamation, libel and slander: What are my rights to free expression?

PHOTO: Mike Gifford (CC)
June 15, 2015

The Canadian Charter of Rights and Freedoms guarantees the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”, but this right, along with all rights guaranteed by The Charter, is not absolute.

Some types of free expression in Canada are crimes, such as perjury, distributing obscene material, and hate speech. The right to free expression is subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Free expression crimes in Canada are constitutional issues, and the onus is on the government to prove that the infringement is justifiable.

However, some limits on free expression in Canada have nothing to do with government restrictions or the right to free expression as defined in the Charter. One such limit is the civil tort of defamation.

Defamation refers to harming another person’s reputation by making a false written or oral statement about that person to a third party. Defamation law is not about protecting pride; it is about protecting reputation and offering restitution to people whose reputations have been wrongly damaged. Although courts will very occasionally issue an injunction to stop defamation that has not yet occurred, almost all defamation cases involve one person suing another for damages from defamatory statements that have already been made.

Tort law surrounding defamation law does not directly curb your right to free expression; it is not illegal per se. Rather, defamation is generally about paying damages to people that have been harmed by your speech. You can still say whatever you want, but you may have to pay for it (and you may have to pay a lot).

It should also be noted that defamation law in Canada varies from province to province. In Ontario, for example, legislation on defamation is found in the Libel and Slander Act. Defamation can be subdivided into libel and slander:

  • Libel: defamation with a permanent record, such as an email, a radio or TV broadcast, a newspaper, a website posting, etc.
  • Slander: defamation with no permanent record, such as a spoken statement or even a hand gesture.

If you are suing for libel in Canada, you do not need to prove that you suffered damages—you only need to prove that a false statement with a permanent record was made about you to a third party, and the court will presume that damages were suffered. If you are suing for slander, however, you usually do need to prove that damages were suffered. Proving that slander caused you financial loss is difficult, which is why slander cases are far less common than libel cases. There are a number of legal defenses against defamation:

1. You can claim that the statement was true; a true statement cannot be defamatory.

2. You can claim “absolute privilege,” which means that the communication was made in a venue where people ought to have absolute privilege to speak freely; this includes Parliament or giving evidence in a trial.

3. You can claim “qualified privilege,” which means that the communication was given in a non-malicious and well-intentioned context and therefore ought to be excused: for example, giving an honest but negative reference for a former employee.

4. You can claim “fair comment,” which means that your statement was a non-malicious opinion about a matter of public interest: for example, an editorial in a newspaper about a politician.

5. You can claim “responsible communication on matters of public importance,” which allows journalists to report false allegations if the news is urgent and of public importance, and if the journalist made an effort to verify the information. Even if the statement is false, the public has an interest in this type of discussion being legally permissible.

Key rulings in Canadian defamation law

In Hill v Church of Scientology of Toronto (1995), the Supreme Court departed from the American standard of requiring “actual malice” for libel; this makes libel easier to prove in Canada than it is in the U.S.

The Court also dismissed arguments that awarding damages in this case would cause “libel chill”—refraining from speaking out for fear of being sued for defamation—in Canada. In this case, the Court awarded Mr. Hill over $1.5 million in damages. This was certainly a loss for free expression in Canada.

While defamation tort law does not technically prevent defamation or make it illegal, the amount of money you may have to pay in damages for defamation can be financially crippling. In Leenan v CBC and Myers v CBC , the CBC was ordered to pay damages to two cardiologists who were wrongly portrayed in a negative light on a CBC program, showing that both Crown corporations and broadcasters of defamatory content, including broadcasters of content created by others, can also be liable for defamation.

In Grant v Torstar (2009), the Court created a new defense against defamation allegations (the fifth defense cited above): the defense of “responsible communications” for journalists. The Court ruled that the existing defamation law in Canada, in comparison to similar countries, was overly strict and that "this, in turn, may have a chilling effect on what is published. Information that is reliable and in the public's interest to know may never see the light of day."

In Crookes v Newton (2011), the Court ruled that publishing a hyperlink to defamatory material does not make one liable for defamation, because hyperlinking to material does not count as publishing that material.

These last two cases hint at a trend towards increasing protections for journalists against defamation. This is just a small sampling of many important Canadian court cases surrounding defamation.

In the interest of brevity, the takeaway is this: defamation law is an attempt to strike a balance between the right to free expression and restitution for individuals who have been harmed by that free expression—and while there have certainly been losses for free expression, there have been some recent victories for free expression as well. Defamation law in Canada is still evolving, and the list of acceptable defenses for journalists is growing.

What do you think?

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  • George Ramos
    commented 2022-01-06 23:54:53 -0500 · Flag
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  • Sophia Lucas
    commented 2022-01-06 07:35:32 -0500 · Flag
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  • Claire Maple
    commented 2022-01-06 05:25:45 -0500 · Flag
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  • Claire Maple
    commented 2022-01-06 05:25:24 -0500 · Flag
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  • Ann Kelley
    commented 2022-01-05 19:59:59 -0500 · Flag
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  • Ann Kelley
    commented 2022-01-05 19:59:37 -0500 · Flag
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  • David Hodges
    commented 2022-01-05 08:41:19 -0500 · Flag
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  • Stephen Hester
    commented 2022-01-04 15:49:53 -0500 · Flag
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    commented 2021-12-30 22:22:01 -0500
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  • Obed J Auta
    commented 2021-12-23 04:33:01 -0500
    I am very happy today with my family. My name is rose saran living in USA, My husband left me for a good 3 years now, and i love him so much, i have been looking for a way to get him back since then. i have tried many options but he did not come back, until i met a friend that darted me to Dr.Jude a spell caster, who helped me to bring back my husband after 2 weeks. Me and my husband are living happily together today, That man is great, you can contact him via email [email protected]… Now i will advice any serious persons that found themselves in this kind of problem to contact him now a fast solution without stress.. He always hello, now i call him my father.contact him now he is always online email ([email protected]) or contact him on his whatsapp mobile line +2347051052154 or his website: Virgolovespell.weebly.com
  • Obed J Auta
    commented 2021-12-23 04:32:36 -0500
    I am very happy today with my family. My name is rose saran living in USA, My husband left me for a good 3 years now, and i love him so much, i have been looking for a way to get him back since then. i have tried many options but he did not come back, until i met a friend that darted me to Dr.Jude a spell caster, who helped me to bring back my husband after 2 weeks. Me and my husband are living happily together today, That man is great, you can contact him via email [email protected]… Now i will advice any serious persons that found themselves in this kind of problem to contact him now a fast solution without stress.. He always hello, now i call him my father.contact him now he is always online email ([email protected]) or contact him on his whatsapp mobile line +2347051052154 or his website: Virgolovespell.weebly.com
  • Visha Reddy
    commented 2021-12-21 00:24:28 -0500 · Flag
    My boyfriend said he was tired of our relationship and needs a breakup, he started avoiding me, His attitude was killing me slowly so I did a research on the internet seeking help. There I saw testimonies of how lord Bubuza helped reunite couples with his spell and how he gave lottery winning numbers to people and helped them win a lottery so I immediately sent him a text: +1 984 240 7211 seeking help. He responded. He promised to help me get my boyfriend back with his spell, I did as he instructed and he casted the spell. It was like a dream because 16 hours after the spell was casted my boyfriend came back begging me on his knees to forgive and accept him back. I am so excited and now I believe Lord Bubuza is a God on Earth. Are you heart broken? Do you need help to win a lottery ? Contact Lord Bubuza via Call/text/whatsapp: +1 984 240 7211 or email: lordbubuzamiraclework @ hotmail . com
  • werdder werdder
    commented 2021-12-17 06:28:51 -0500
    I am grateful sharing this great testimonies with everyone here, The best thing that has ever happened in my life is how i win the lottery. I am a woman who believe that one day i will win

    the lottery. Finally my dreams came through even if i did not win millions but i am happy with what i won because i have come a long way spending money on ticket just to make sure i win but i

    never knew that winning was so easy until the day i meant the spell caster online which so many my people has talked about that he is very great, so i decide to give it a try. I contacted

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  • Maimuna A Abdullahi
    commented 2021-12-17 05:09:58 -0500
    August 24th 2020, my husband proposed and agreed to marry me then we both planned for the wedding. Our wedding was to be held on September 27th. We had a little misunderstanding and he left me for another girl. I almost committed suicide. which lead to our break up. I was not myself again, I felt so empty inside me, my love and financial situation became worse, until a close friend of mine told me about a spell caster who helped her in the same problem too. His name is Doctor Ogudo. I emailed the spell caster and I told him my problem and I did what he asked of me, to cut the long story short. Before I knew what was happening, less than two days ago my husband gave me a call and told me that he was coming back to me. I was so happy to have him back. The most interesting part of the story is that I am pregnant. Thanks to Doctor Ogudo for saving my marriage and for also saving others’ own too. Continue your good work, If you are interested to contact the great spell caster email address: [email protected]

    Whatsapp Number +2349154145362   
    facebook page  https://www.facebook.com/healthmedicationcare  
     He did cure those illnesses with herbal medicine!!!
    1 Cancer herbal medicine
    2 Hiv herbal medicine
    3 Low sperm count
    4 Barrennessi
    5 Hvp herbal medicine
    6 Herpes herbal medicine Get your problem solved ..
  • Maimuna A Abdullahi
    commented 2021-12-17 05:04:44 -0500 · Flag
    August 24th 2020, my husband proposed and agreed to marry me then we both planned for the wedding. Our wedding was to be held on September 27th. We had a little misunderstanding and he left me for another girl. I almost committed suicide. which lead to our break up. I was not myself again, I felt so empty inside me, my love and financial situation became worse, until a close friend of mine told me about a spell caster who helped her in the same problem too. His name is Doctor Ogudo. I emailed the spell caster and I told him my problem and I did what he asked of me, to cut the long story short. Before I knew what was happening, less than two days ago my husband gave me a call and told me that he was coming back to me. I was so happy to have him back. The most interesting part of the story is that I am pregnant. Thanks to Doctor Ogudo for saving my marriage and for also saving others’ own too. Continue your good work, If you are interested to contact the great spell caster email address: [email protected]

    Whatsapp Number +2349154145362   
    facebook page  https://www.facebook.com/healthmedicationcare  
     He did cure those illnesses with herbal medicine!!!
    1 Cancer herbal medicine
    2 Hiv herbal medicine
    3 Low sperm count
    4 Barrennessi
    5 Hvp herbal medicine
    6 Herpes herbal medicine Get your problem solved ..