What are defamation defences?

Defamation Defences: What You Need To Know

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.

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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 Defamation Lawyer Can Help

Defamation claims can be complex and emotionally charged. When your reputation is on the line, having an experienced defamation lawyer by your side can make all the difference.

Here’s how they can assist:

Assessment of Claims

A defamation lawyer will evaluate the merits of your case. They’ll scrutinize the alleged defamatory statements and assess their impact on your reputation, helping you gauge the strength of your claim.

Crafting a Strong Case

Building a compelling defamation case is essential. Your defamation lawyer will formulate a robust strategy tailored to your unique circumstances. This may involve proving that the statements are false, not protected speech, or made with malicious intent.

Evidence Gathering

Gathering evidence is a critical aspect of defamation cases. Lawyers can help collect relevant documents, communications, and witness statements to support your claim. They’ll work diligently to build a strong case on your behalf.

Negotiation and Settlement

Often, defamation cases can be resolved through negotiation or settlement. Your defamation lawyer will engage with the opposing party to seek a resolution that protects your reputation and rights.

Litigation Representation

In cases where negotiation fails, a defamation lawyer can provide strong representation in court. They’ll present your case effectively, cross-examine witnesses, and argue legal points to secure the best possible outcome.

Appeals and Post-Trial Actions

If an unfavorable verdict is reached, your lawyer can assist in appealing the decision or pursuing post-trial actions to rectify any legal errors.

Protection of Your Reputation

Throughout the process, your defamation lawyer will prioritize the protection of your reputation. They’ll work tirelessly to minimize damage and seek the most favorable resolution available.

In defamation cases, the support and guidance of a skilled defamation lawyer can make a significant difference in safeguarding your reputation and achieving a just outcome. Whether you’re facing false accusations or defending your right to free speech, their expertise ensures you have a dedicated ally in the complex world of defamation law.

In Summary

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 defamation 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 defamation 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.

Contact Achkar Law

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.

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