Uniquely among the world's legal systems, English common law divides defamation into two categories: libel, which covers publication in a form with some permanence, such as books or newspapers, and slander, which deals with the more transitory publication by spoken word or gesture.
The distinction arises from an accident of history, the sixteenth-century competition for power and jurisdiction between the Ecclesiastical Courts and the Star Chamber. The Ecclesiastical Courts dealt with defamation, both written and oral as sin, imposing penance on the wrongdoer. The Star Chamber punished "libel", both written and oral, as a crime. By 1855, the civil Courts of King's Bench had inherited the jurisdiction of both the Star Chamber and the Ecclesiastical Courts. For the first time, one court had jurisdiction over all written and oral defamation. Rather than merging the two, however, the court of King's Bench separated written and oral publications into libel and slander, respectively.
The common law's rather artificial distinction between libel and slander does not readily lend itself to an easy classification of defamation published! by way of twentieth-century technology. For instance, are defamatory words spoken but broadcast by radio a slander or a libel? Similarly, how are words and images communicated by television to be categorized? Each province and territory, except Quebec, has enacted its own Libel and Slander Act, Defamation Act or territorial ordinance, incorporating the old common law with minor modifications to take account of such modem issues. Ontario's Libel and Slander Act, deems the broadcast of defamatory words, pictures, visual images, gestures and other methods of signifying meaning to constitute libel.
There is no all-encompassing definition of defamation. Gatley on Libel and Slander, says that "a defamatory imputation is one to a man's discredit or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession or to injure his financial credit." Jeremy Williams in The Law of Defamation in Canada describes defamation more simply as "an invasion of the plaintiff's interest in his reputation and good name."
The reputation to be protected is not the one that the plaintiff believes he or she has, wishes he or she had or even deserves, but rather the one actually held of him or her by the community in general. Reputation is what others think of you, not what you think of yourself. For this reason, the defamatory words, to be actionable, must be communicated (published) to at least one other person. Such publication is an essential element that must be proven by the plaintiff, unless it occurs in the mass media, in which case the Libel and Slander Act deems publication to have occurred, without further proof. Defamation is virtually the only cause of action where it takes more than two to tango.
ELEMENTS OF A LIBEL ACTION
The law of defamation seeks to balance two often-opposing societal interests: freedom of speech and of the press on the one hand and the importance of reputation on the other.
In an action for libel, the plaintiff is required to prove:
(a) that the libellous statement has been communicated to some person other than the person of whom it is written (when published through the mass media this is presumed);
(b) that the libel refers to him or her (or it, because a corporation too has a reputation to protect); and
(c) that the statement is defamatory, that is, that the plaintiffs reputation has been adversely affected.
In an action for slander, the plaintiff must in addition prove actual damages unless the slander imputed a crime to the plaintiff or the plaintiff has been defamed in the way of his or her office, calling or profession.
LEGAL PRESUMPTIONS (REVERSE ONUS)
Once the plaintiff has proven the three essential elements (four in the case of slander), the law presumes that:
(a) The statement is false;
(b) It was published with malice, that is, without an honest belief in its truth or recklessly as to its truth, or was published for some ulterior purpose; and
(c) The plaintiff has suffered damage.
(a) A statement that is defamatory on its face by a plain reading of the words at issue;
(b) A statement which contains a false innuendo, that is, carrying an inference that possibly may be seen as defamatory only by persons possessing the necessary contextual knowledge. The particular juxtaposition of words, phrases, sentences or even paragraphs may give rise to additional meanings never intended by the author but inferred from the particular construction of the piece at issue; and
(c) A legal or true innuendo which is not defamatory on its face but becomes defamatory when it is conjoined with facts or circumstances extrinsic to the article in question but known to at least some members of the audience. The innuendo may arise from the use of special language, technical terminology or slang, or terms of art, which, to people who know that language, carries local meaning and conveys a defamatory imputation, although the words would not ordinarily bear that meaning.
Despite the reverse onus, a defendant in a libel action does have a number of defences available that provide a fair degree of protection. They include:
1. JUSTIFICATION: Truth is a complete defence. Malice does not negate this defence. For the defence to succeed, however, the words must be true in substance and in fact and according to their natural and ordinary meaning. The court will determine the natural and ordinary meaning to be attributed to the words in question.
2. FAIR COMMENT: This defence is available when the alleged defamatory wordsare expressions of opinion on matters of public interest This defence may be lostif malice is shown. For such a defence to succeed, the facts being commented upon must be correctly stated. The words at issue must clearly be an expression of opinion and not a statement of fact. If there is any doubt whether the statementis an expression of opinion or a statement of fact, the law will deem it to be a statement of fact. In such case, the fair comment defence will not be available.
3. PRIVILEGE: Privilege is either absolute or qualified. It is the occasion upon which the communication is made that is privileged, rather than the communication itself. A privilege defence will protect me writer/publisher even when the words at issue are defamatory. The occasions when such a defence apply are those in which public policy dictates that the protection of private reputation must give way to the greater societal good.
There are only a few circumstances where absolute privilege attaches. It extends to the publication of words used in the course of legal or legislative proceedings, statements made between executive officers of government and communications between lawyers and clients. Malice will not defeat the privilege inherent in these cases. All other forms of privilege are qualified in that they may be defeated by malice.
Qualified privilege at common law attaches to those statements made in the protection of an interest or the performance of a duty and requires a reciprocity of duty and interest between the person publishing the statement and the person or persons receiving the statement. If published too widely, the defence is lost. As such, this defence, in its common law form, is of little or no use to authors who communicate with the public at large, except where proceedings of Parliament, the legislatures or quasi-legislative bodies are involved.
Qualified privilege has been extended by statute to protect the media. Under the Ontario Libel and Slander Act, statutory qualified privilege applies to the media's reporting of court proceedings and a wide range of public and quasi public proceedings.
4. INNOCENT DISSEMINATION: This defence does not apply to the author or writer but is meant to apply to any person in the chain of publication who innocently and without knowledge as to the contents was involved in distributing the offending words. This defence would apply to the newspaper carrier and others who have no editorial or decision-making function in the distribution process.