Defamation Defences: What You Need To Knowachkarlaw-admin
Defamation is the act of harming an individual’s or business’ reputation by making an untrue statement, oral or written, to another person. This article will explain how to defend against a defamation claim and how a commercial litigation lawyer can help.
The law compensates a victim of defamation for the damage done to their reputation. It balances a person’s right to protect their reputation from unjustified harm against another person’s right to freedom of expression.
A person named as a defendant in a defamation lawsuit can respond to the claim by serving and filing a statement of defence. The statement of defence must be drafted, served, and filed according to the Ontario Rules of Civil Procedure (Rules).
The defending party may respond to a defamation claim by:
- Targeting the weaknesses in the plaintiff’s case;
- Proving the statements were true;
- Showing the statements constituted a fair comment;
- Claiming absolute or qualified privilege; or
- Showing the statements were responsible communication on matters of public interest.
This article will explain how to defend a defamation claim and demonstrate how a commercial litigation lawyer can help.
Target the Weaknesses in the Plaintiff’s Case
To be successful in a defamation claim, the person bringing the claim must show:
- The words were defamatory as they would lower the plaintiff’s or their business’ reputation in the eyes of a reasonable person;
- The words referred to the plaintiff or their business; and
- The words were published, meaning that they were communicated to a third party.
The defending party can defend the defamation lawsuit by demonstrating the plaintiff failed to prove any of the elements of defamation mentioned above.
For instance, the defendant may show that someone else made the impugned statements, or they may prove that defamatory words did not refer to the plaintiff or their business.
Further, the Ontario Limitations Act, 2002 prescribes that a civil suit must be filed within two years from when the claim was discovered or reasonably should have been discovered.
If the plaintiff fails to file their claim within the limitation period, the defending party may request the Court to dismiss it for being filed outside the limitation period.
Prove the Truth of Statements
Truth is an absolute defence against defamation. The burden of proof lies on the defendant, meaning defending party must prove that the defamatory words were true in substance.
For instance, if the alleged defamatory statements pertain to the quality of the plaintiff’s goods, the defendant can get the goods tested by an independent agency. If the independent agency confirms the substandard quality allegations, the defendant can use its report justify their comments.
Show the Statements Constituted a Fair Comment
The defence of fair comment is available when defamatory statements are expressions of opinion. The elements of the fair comment defence are:
- The comment was made in a matter of public interest;
- The comment was based on fact;
- The comment is recognizable as an opinion; and
- The comment satisfies the honest belief test, i.e., if any person could honestly have expressed the same opinion as the defendant on the proven facts.
The fair comment defence is quite technical, and the defending party must prove every element mentioned above to be successful. Even if the impugned comment satisfies the test of honest belief, the fair comment defence will fail if the aggrieved party proves that the defendant made the statements with malice.
Each element of the fair comment defence has its sub-elements to prove. For instance, to determine whether a comment was a matter of public interest, the defendant must show that the subject matter of the impugned statements invites public attention. In other words, if the defamatory statements refer to matters that affect general people, the defendant can raise the defence of fair comment.
Claim Absolute Privilege or Qualified Privilege
The defence of absolute privilege protects statements from defamation claims when they’re spoken on a specific occasion. The privilege is attached to the occasion of the speech and not the speech’s content.
Examples include statements made by a party in judicial proceedings, legislators throughout legislative debates, and politicians during political broadcasts or speeches.
The qualified privilege defence applies when the person making the statement has an interest or duty to make it. Further, the impugned comment should have been made to someone with an interest or obligation to receive it.
For instance, the statements made in government reports of official proceedings, a teacher reporting child abuse, and a witness reporting an incident to the police could come under the qualified privilege defence.
Show that the Statements were Responsible Communication on Matters of Public Interest
Usually, the media and press members use this defence when someone sues them for making a defamatory statement in a publication. The defence of responsible communication on matters of public interest applies where:
- The publication is related to a matter of public interest; and
- The publisher of the statements diligently tried to verify the allegations.
The Courts consider the following factors in determining whether the publisher was diligent in trying to verify the allegations:
- The allegation’s seriousness;
- The public importance in the matter;
- The matter’s urgency;
- The status and reliability of the source of information;
- Whether the plaintiff’s side of the story was sought and accurately reported;
- Whether there was any justification for the inclusion of the defamatory statement;
- Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and
- Any other relevant circumstances.
How a Lawyer Can Help
Many businesses appoint a chief legal officer (CLO or general counsel to provide extensive legal services and advise them on legal issues affecting the company. The CLO heads the company’s legal department, supervises the work of the in-house legal team and reports to the company’s chief executive officer.
The CLO’s job description includes:
- Advising the board of directors and senior management regarding their legal and regulatory compliance obligations;
- Drafting and reviewing business contracts and workplace policies;
- Dealing with employee hiring and termination; and
- Addressing Human Rights complaints and employee accommodation requests.
A defamation lawsuit can have severe consequences for an individual or a business. It can seriously impede the credibility of any reputed company. Along with damages, the publisher of defamatory statements might have to issue a retraction and a public apology.
You should seek legal counsel from your business’ CLO before publishing any statements that could be considered defamatory. They can advise you on the possible legal consequences of your comments and help you devise a legal strategy to defend yourself if the target of the statements decides to sue.
If you or your business has been sued for defamation, you should get in touch with a commercial litigation lawyer as soon as possible. The commercial litigation lawyer will review the alleged defamatory statement and its surrounding circumstances and advise you on how to defend the claim.
A commercial litigation lawyer can point out the deficiencies in the plaintiff’s case and help you plead every possible defence applicable to your case. They can strategize your defence based on the specific facts of your case and try to get the best possible outcome from litigation.
A commercial litigation lawyer can help you plead your defence properly, bring appropriate motions, tender necessary evidence, ask the relevant questions at discoveries, and raise legal arguments at trial to increase your chances of success.
Depending on what is at stake for you or your business, a commercial litigation lawyer’s expertise and help can be a sound investment to safeguard your business’ interests.
Losing a defamation case can significantly impact an individual, a business, or a publication. For instance, a journalist who is found to have made defamatory statements can lose credibility with the public.
Our commercial litigation lawyers understand the importance of defending a defamation lawsuit. They can help you plead all the possible defences and justify your statements, where possible.
For this reason, you should consider having a commercial litigation lawyer assist you in defending a defamation claim. We will help you strategize your defence and achieve your desired results with cost-efficient and effective advocacy.
If you have been asked to defend a defamation lawsuit, our team of experienced business lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.