Wednesday, January 19, 2011

Law Tips for Bloggers (Part II)

Defamation Law


The common law protects every person from harm to their reputation by false and derogatory remarks about their person, known as defamation.-

In addition, all Canadian provinces have libel/slander legislation (defamation includes slander and libel, where slander is verbal defamation and libel is printed defamation).

Libel is by definition false. Anything that is provably true cannot be libelous.-

The major points of defamation law in Canada are:-

Defamation is an unusual tort in that it is a "strict liability" tort. In other words, it does not matter if the defamation was intentional or the result of negligence.

Defamatory material is presumed to be false and malicious.
"Whatever a man publishes", according to one case, "he publishes at his peril."

Defamation must be a direct attack on an actual reputation, not an alleged reputation that a "victim" believes they deserve. A judge will assess the statement against the evidence of the victim's reputation in their community.

The remarks must be harmful (i.e. "defamatory" ) and this will be assessed on a case-by-case basis. Some statements are clearly defamatory. Other statements would only be defamatory to the person targeted by the remarks. What may be a nonsensical or mildly offensive remark to one person may constitute serious defamation to another. The judge will consider the situation of the person defamed in assessing the claim of defamation.

The defamatory remark must be clearly aimed at the plaintiff. General, inflammatory remarks aimed at a large audience would not qualify as the remarks must be clearly pointed at a specific person.

Special defences available against defamation are:

Truth is the blogger’s best defense against a libel suit. 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. In other words, if a blogger reports something that is true it cannot be libelous, even if it damages a person’s reputation.

There is what is known as a "qualified privilege" where remarks that may otherwise be construed as being "defamatory", were conveyed to a third party non-maliciously and for an honest and well-motivated reason.

As per decision of the SUPREME COURT OF CANADA (December 22, 2009), journalists and other media, including bloggers, will be protected from lawsuits if they diligently try to verify information on matters that are in the public interest. The bloggers may even go so far as to presume motives on the part of the person who's actions are being criticized provided only that the imputation of motives is reasonable under the circumstances. The rule of thumb is that the fair comment must reflect an honestly held opinion based on proven fact and not motivated by malice. It should be noted, however, that some provinces have enacted laws which give their citizens varying rights to fair comment.

Situations which involve racial or hate defamation might find a more expeditious and cost-effective recourse through human rights legislation rather than defamation.

You should also be aware that most provinces have implemented very short limitation periods with regards to alleged defamation appearing in newspapers or broadcast (as short as six weeks in some cases) so time may be of the essence.

ADDITIONAL NOTES:-The libel notice also gives some advantage to the publisher. If the publisher is convinced that there was no libel, then the publisher can report on the threat of a lawsuit. In some cases, this can make the complainant seem like he or she has something to hide. In other cases, the increased rhetoric may force the complainant to drop the matter so that the libel lawsuit does not spread the story even further.

In many cases people believe that they have been libelled by bloggers. If nobody has read the blogger's website, then it might not be worth sending a libel notice. As soon as the blogger publishes the notice, it becomes much more likely for media to pick up on the story. In such cases, the complainant must consider very carefully whether it is worth the risk of sending a libel notice. Normally, it will make more sense to phone the person first and ask for a retraction before sending anything official.

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Disclaimer: This information is intended for general educational purposes only, and you may not rely on its contents for legal advice. Please keep in mind that the laws of Ontario are often different from the laws of other Provinces of Canada, States of the United States of America, and other countries. Furthermore, the law changes, and what was once an accurate statement of the law, may now be outdated and inaccurate. If you have a specific legal problem or issue, please consult a lawyer who is familiar with the laws of your province, state or country. -

>>> Reference posts:
- Law Tips for Bloggers (Part I) /Burden of Proof in a Civil Lawsuit/,
Constitutional Law: 'Freedom of Expression in Canada' &
- Taking responsibility for your blog comments.

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