Canada Defamation: Legal Overview

Canada defamation
An overview of Canada defamation law

Canada Defamation Law Overview

Canada is considered to have the most plaintiff-friendly defamation laws in the “English-speaking world.” Being a Commonwealth nation, Canada adheres to English law for slander and libel cases. The exception is Quebec, with its French legal roots.

Generally speaking, in Canada, defamation is any communication that lowers the reputation or esteem of the subject.

Professional Defamation in Canada

The plaintiff in an action for professional slander or libel doesn’t need to prove special damages, if the comment is 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.

Notification

A plaintiff must notify the defendant, in writing, within six (6) weeks, of his or her intent to move forward with a defamation claim. Libel actions against a newspaper or slander actions involving a broadcast must commence within three (3) months after publication or broadcast.

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.

Hyperlinks

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).

Under Canadian law, the majority of hyperlinks are considered mere references and don’t, on their faces, constitute a viable online libel claim. Hyperlinks and references both communicate that something exists, but do not, by themselves, endorse 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.

Since 2008, Canadian Courts Have Been Slowly Shifting Case Law To More Free Speech-Friendly Standards

The case of WIC Radio Ltd. v. Simpson, 2008 SCC 40, is considered a turning point in Canadian defamation law, as it was signaled a shift towards a more “free speech-friendly” interpretation of Canada defamation law. Furthermore, the case revolutionized “fair comment” as a viable defense under Canadian case law. In order for a statement to be considered fair comment in Canada, it must be:

  • about a matter of public interest;
  • based on fact;
  • recognizable as comment;
  • reasonable; and
  • free of actual 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.”

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Thanks to an international network of attorneys, Kelly / Warner regularly handles Canada defamation cases. Contact us.