Welcome to 'The Libel Bible' – a six-part article series on all things defamation law. In this comprehensive series, we delve into the complexities of defamation and the law that surrounds it in the UK. With discussion on fundamental principles and commentary on recent cases, this series provides an informative insight into the intricate world of freedom of expression and reputation protection in today's progressive society.
In this final article of the series, we look at the elements of a defamation action in both the UK and Canada.
What would you do if you woke up this morning and discovered that the media or a social media user had falsely accused you of a crime or other wrongdoing that seriously damaged your reputation? You might wonder whether there is any available recourse for you to recover from the resulting reputational damage. In both the United Kingdom and Canada, one of the available remedies is a defamation action.
In the past few years, high-profile defamation cases have become global headline news stories (think: Vardy v Rooney in the UK, or the Johnny Depp trials in the UK and USA). While the law of defamation bears similarities in the UK and Canada, they are not the same.
Elements of a defamation claim
UK
If you feel that you have been defamed, and decide to bring a defamation action, to be successful in the UK, you will need to prove that any statement complained of:
- is defamatory;
- identifies or refers to you;
- was published to a third party; and
- caused or is likely to cause serious harm to your reputation.
In the UK, there is strict liability – so there is no need for the defendant to have any intention to defame.
Canada
A defamation cause of action in Canada is very similar to the UK. A key distinction is the UK's requirement of "serious harm". In Canada, you need to prove that any statement complained of:
- is defamatory;
- identifies or refers to you; and
- was published to at least one person other than the plaintiff.
If these three elements are proven on a balance of probabilities, falsity, and general damages are presumed. The burden is then placed on the defendant to advance a valid defence to escape liability.
What is a "defamatory statement"?
What it means in the UK:
In the UK, a statement will be defamatory if it lowers the reputation of the claimant in the eyes of right-thinking members of society. Whether or not a particular statement is defamatory will very much depend on the words used and the meaning of those words.
Establishing the precise meaning of words can be an uncertain exercise as language is open to interpretation by different people. The UK courts therefore require both parties to assert what they consider to be the "natural and ordinary" meaning of the alleged defamatory statement. These assertions are to assist the court in determining the "single meaning" of the words which will often be determined by the court as a preliminary issue (the so-called "Single Meaning Rule").
As part of our article series, we provide further information on the meaning of words and consideration of the "Single Meaning Rule".
Establishing the meaning of the words is not the end of the matter, however. A statement is not defamatory in the UK unless it has caused or is likely to cause serious harm.
What constitutes "serious harm"?
According to the UK's Defamation Act 2013, a statement is not defamatory unless it has caused, or is likely to cause serious harm to the reputation of the claimant.
What constitutes "serious harm" will be fact specific and the parties will need to consider a number of factors such as the nature and meaning of the allegations, and the extent of the publication (including who it was published to, etc.).
As part of our article series, we provide further information on "serious harm".
However, it is clear that for corporate entities (i.e. any entity that trades for profit) seeking to establish defamation, harm to reputation will not be considered "serious" unless it has caused or is likely to cause serious financial loss. This is a hurdle that a number of corporate claimants struggle to meet.
What it means in Canada:
Like in the UK, a statement will be defamatory if it lowers the reputation of the claimant in the eyes of a reasonable person. Unlike the UK, there is no requirement that the defamatory statement cause serious harm to the reputation of the claimant. General damages are presumed.
Defences to defamation
Even if a plaintiff can establish all of the elements of a defamation cause of action, the defendant may have defences and avoid liability.
In the UK:
In the UK, the available defences are: truth (i.e. if the defendant can show the statement is substantially true), honest opinion, publication on a matter of public interest and in situations of privilege.
In Canada:
In Canada, the defences to a defamation action include truth (also known as "justification"), fair comment, absolute privilege, qualified privilege, and responsible communication on a matter of public interest.
- To establish a truth defence, the defendant must prove that the defamatory statement and any innuendos are substantially true.
- The fair comment defence protects expressions of opinion on matters of public interest, where they were made without malice and based on a true factual foundation. The statement must be recognizable as comment, and an opinion that any person could honestly express. The defence is defeated by a defendant's malice. Malice includes spite or ill-will, improper motive, or a reckless disregard for the truth.
- The qualified privilege defence protects defendants who made the defamatory statement as a result of a social, moral or legal duty, and it was conveyed to those that have a corresponding duty or interest in receiving it. The defamatory statement must have been made without malice.
- The responsible communication on matters of public interest defence protects statements on matters of public interest, where the defendant was diligent in verifying the allegations made and otherwise responsible in preparing the publication. By definition, if a publication was malicious, it was not made responsibly, and the responsible communication defence will be unavailable.
- Absolute privilege applies to statements made under certain circumstances granting a defendant immunity from liability. For example, absolute privilege extends to statements made in court documents or to the testimony of witnesses in court.
Strategic Lawsuits Against Public Participation (SLAPPs )
Strategic Lawsuits Against Public Participation ("SLAPPs ") are libel actions bought by parties, usually with significant financial means (e.g. wealthy individuals or corporations), to harass, intimidate, and financially or psychologically exhausting opponents to stop criticism or to suppress opposing views.
The Canadian provinces of Ontario, British Columbia, and Quebec have enacted Anti-SLAPPs legislation. The legislation in Ontario and British Columbia allows libel defendants to seek to have the action dismissed on the basis that it is a SLAPPs . The UK is considering implementing Anti-SLAPPs legislation.
UK
The UK has very recently enacted anti-SLAPPs provisions within the Economic Crime and Corporate Transparency Act 2023, although these are limited to defamation claims in respect of publications concerning economic crimes. Please see our other article for further information on SLAPPs.
Canada
In Ontario, the Anti-SLAPPs regime is set out in sections 137.1-137.5 of the Courts of Justice Act and came into force in 2015. British Columbia passed the Protection of Public Participation Act (PPPA) in 2019. Each of these regimes establishes almost identical legal frameworks.
The Anti-SLAPPs legislation favours defendants, who must simply establish that the proceeding relates to an expression made by them on a matter of public interest (which is not limited to defamation actions and can include other causes of action such as breach of contract). The burden then shifts to the plaintiff to demonstrate that:
- there are grounds to believe that;
- the proceeding has substantial merit,
- and the moving party has no valid defence in the proceeding; and
- the harm likely to have been suffered by the defendant is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
If the plaintiff does not get past all three of these hurdles, the action will be dismissed.
The Supreme Court of Canada has released three key decisions guiding the interpretation and application of Ontario and British Columbia's anti-SLAPPs legislation.
Because a successful Anti-SLAPPs motion dismisses the action, they are defended vigorously by claimants, often on an extensive evidentiary record. Anti-SLAPPs motions often end up as "mini" trials, with significant court and party resources expended in the process. This is the antithesis of their intended role as a mechanism for prompt and expeditious resolution of the validity of the action. As a result, there are now calls for changes to the Anti-SLAPPs regimes in Ontario and British Columbia.
The team at Gowling WLG is experienced in advising on defamation cases. If you would like help navigating this complex area of law, please do get in touch with Charlie Bond or Nick Cunningham in the UK, or Richard Dearden or Caitlin Schropp in Canada to learn how we can assist you.