Recommended Changes in Defamation Lawachkarlaw-admin
Defamation law often intersects with employment law, and at various stages of an employment relationship, including after the termination of an employee. Defamation typically occurs when a false statement is made about an individual or business which causes damage to their reputation. These types of false statements can be categorized more specifically under slander and libel. Libel consists of a permanent written record, such as a or a newspaper article, whereas slander involves oral statements.
In employment, false statements made by an employer or an employee often occur around the time of the employee’s dismissal, but may occur at any stage of the employment relationship. Such statements, if they damage the other side’s reputation, may open the speaker or drafter to a claim of defamation.
For example, in Hampton Securities Limited v Dean, 2018 ONSC 101, an employee successfully claimed damages for defamation against her employer. In that case, her employer had filed a Notice of Termination stating that she was dismissed for cause for failing to follow trading policies and engaging in unauthorized trading—the damages for defamation alone amounted to $25,000.
This article outlines recent recommendations by the Law Commission of Ontario (“LCO”) with respect to defamation law in Ontario.
Due to the improvements and widespread use of technology and online communication in the past decade, cyber-libel has become increasingly important. Cyber-libel is libel in the “internet” world, where false statements made in message boards, blogs, chat rooms, personal websites, or social media may have a big impact on the reputation of an individual.
On March 12, 2020, the LCO released their final report on Defamation Law in the Internet Age, where 39 recommendations were made to update defamation law and promote access to justice. This report was introduced due to the challenges of the internet age.
The report states that “the internet is now the arena in which much, if not most, defamation occurs,” which “has had an unprecedented impact on the two core values underlying defamation law: freedom of expression and the protection of reputation.”
Some of the recommendations made by the LCO include:
- Repealing the existing Libel and Slander Act and replacing it with a new Defamation Act;
- Providing a two-year limitation period for all defamation claims;
- Establishing an online dispute resolution governmental tribunal, which would provide a quick and inexpensive forum for resolving defamation complaints;
- Replacing the defence of fair comment with a new defence of opinion, which would remove the requirement to demonstrate an “objective honest belief” to establish the defence;
- Establishing new legal responsibilities for internet platforms that host third party content accessible to Ontarians. These duties should include obligations to:
- Pass on notice of defamation complaints to online publishers; and,
- Take down content if the publisher of the content does not respond to notice.
The upcoming Defamation Act is needed to deal with long-overdue issues pertaining to online defamatory statements since currently there is no practical legal remedy for Ontarians victimized by online defamation.
The recommendations brought forward by the LCO will address the increased misuse of online communication to defame by other parties, seen often in cases involving a frustrated employee or an employer who maintained cause where there was none.
While these recommendations have no yet become law, it is important to keep an eye on what changes may be around the corner. Legal amendments or new law based on these recommendations will open up the scope and limitation period of defamation claims, and will likely result in more defamation claims if employers and employees are not careful about their statements.