Chart: Differences Between United States and Canadian Defamation Law

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General Defamation Definition Plaintiffs don’t have to prove falsity, malice or special damages to win a defamation suit. As such, Canadian politicians often use libel litigation as a way to silence critics. Defamation laws in the province of Quebec, however, more closely mirror United States defamation laws than the other provinces. Canada is widely considered to have the most plaintiff-friendly libel laws in the English-speaking world. Plaintiffs must prove falsity and material harm. If the plaintiff is a private citizen, he or she must prove gross neglect on the part of the defendant; If the plaintiff is a public figure, he or she must prove actual malice, on the part of the defendant, to win a slander or libel suit. The United States is widely considered to have the most defendant-friendly libel laws in the English-speaking world.
Burden of Proof Defendants are considered prima facie liable until proven innocent. Defendants are considered innocent until the plaintiff proves otherwise.
Hyperlinking An individual or entity is not liable of libel for hyperlinking to defamatory content “without explicit agreement with the content.” In other words, if the operator of the site does not edit or comment on the material, the link is not considered a “substantial publication” and therefore not defamatory in it of itself. If the link to defamatory content was posted by a site user, the website operator will probably enjoy protection under Section 230 of the Communications Decency Act. If, however, the website operator curates or edits the link in any manner, they may be held accountable for linking to defamatory material.
Fair Comment The English Common Law concept of “fair comment and criticism” is a justifiable defense in Canada. The First Amendment of the United States Constitution intrinsically confers fair comment and criticism rights to every U.S. citizen. Free speech is a valid defense for defamation in the United States.
Neutral Reportage Proving the statements in question were honest journalistic statements (usually describing what a given party said or did), about a matter of public concern, is a valid defamation defense in Canada. Neutral reportage is not a widely recognized defamation defense in the U.S. Some jurisdictions have flat out rejected it, while others acknowledge the concept, but agree it’s not codified in the United States Constitution. However, the U.S. standard of actual malice covers scenarios where neutral reportage would be used in common law countries.
Truth as Defense Defense of justification, or “the truth,” is an acceptable defense for defamation. Truth is an absolute defense for defamation. (Exceptions exist in rare circumstances.)
Privileged Communication Privileged communications enjoy certain protections from defamation actions. Privileged communications enjoy certain protections from defamation actions.
Statute of Limitations Varies by province. Varies by state.
Responsible Communication Responsible communication is a fairly new defamation defense established by the Canadian Supreme Court. Essentially it offers libel and slander protection for journalists, bloggers, citizen-journalists and publishers who gathered information in a “responsible manner” even if their reports turn out to be false. The issue at hand, however, must be one of public interest. Defamation law in the United States inherently covers responsible communication protections since slander and libel plaintiffs must prove that the defendant acted with either malice or reckless disregard for the truth.
Actual Malice Actual Malice is not a requirement in Canadian defamation lawsuits, meaning the plaintiff does not have to prove that the defendant lied with malicious intent. Public figures suing for defamation in the United States must prove actual malice in order to win. In other words, he or she must provide evidence that the defendant knowingly lied with the intent of harming the plaintiff.
Does the “loser” have to pay internationally? Generally speaking, if a Canadian citizen is found guilty of defamation in the United States, they are legally responsible for any award damages handed down in the ruling. Due to the SPEECH Act, which was signed into law in 2010, U.S. citizens are basically protected from having to pay defamation damages handed down in international jurisdictions that don’t mirror American free-speech-friendly standards of defamation.