Defamation Laws In Canada

An Ontario legislation through the Libel and Slander Act R.S.O. 1990, CHAPTER L.12, which prohibits the dissemination of defamatory comments, specifically, spoken or written words that discredit an individual in the estimation of right-thinking members of society.

Under Section 16 of said Act (which involves slander affecting official, professional or business reputation), the plaintiff in an action for slander, need not prove special damage, if the slander refers to words which are calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication of such words.

Sections 5 (1) and 6 of the said Act provides for the statute of limitations in filing a case of libel affecting only newspapers printed and published in Ontario, as well as broadcasts from a station located in Ontario. According to Section 5(1) of the said Act, the plaintiff must notify in writing the defendant within six (6) weeks from the time the plaintiff has knowledge of such publication or broadcast, otherwise no action for libel in a newspaper or in a broadcast will lie. At same time, such action for libel or slander in a newspaper or in a broadcast must commence within a period of three (3) months after the libel has come to the knowledge of the person defamed as prescribed under Section 6 of said Act.

The definition of publication through a newspaper includes publication through the internet as held in Weiss v. Sawyer 2002-09-19, DOCKET: C37351, Court of Appeal for Ontario. However, a “hyperlink”, by itself, should never be seen as “publication” of the content to which it refers. (Please see Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269, October 19, 2011, Docket No. 33412). Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral.
In the case of Filion v. Canadian Broadcasting Corporation (June 16, 2000, Ontario Supreme Court), it was held Section 5(1) is a condition precedent (six-weeks notice) in filing an action for libel or slander, otherwise it shall be an absolute bar to an action for libel.

The case of WIC Radio Ltd. v. Simpson, 2008 SCC 40, signifies that the defamation law has shifted the balance towards greater free speech. It also brings Canada more in sync with the U.S. approach to free speech, and breaks away from the European model of soft censorship. Furthermore, the elements of “fair comment” as a defense have been revolutionized with the following elements:

(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognizable as comment;
(d) the comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts?
(e) even though the comment satisfies the objective test, the defense can be defeated if the plaintiff proves that the defendant was actuated by express malice.

The term “honest belief” as an important element in “fair comment” as a defense requires the existence of a nexus or relationship between the comment and the underlying facts as “could any man honestly express that opinion on the proved facts”. Various characterizations of “any man” show the intended broadness of the test, “however prejudiced he may be, however exaggerated or obstinate his views.”