- The plaintiff’s initial burden is low: words that would lower reputation, referring to them, published to someone else.
- Falsity and damage are presumed once those elements are met, shifting the burden to the defendant.
- The defences, truth, fair comment, qualified privilege and responsible communication, do the real work.
- Claims involving newspapers and broadcasts carry very short notice and limitation requirements.
The elements
A plaintiff must establish three things: that the words would tend to lower their reputation in the eyes of a reasonable person; that the words referred to them; and that they were published to at least one person other than the plaintiff.
That is a low bar. Once met, falsity and damage are presumed, and the burden shifts to the defendant to establish a defence.
This structure is why defamation claims are simple to plead and difficult to win: almost everything turns on the defences.
Truth
Truth, justification, is a complete defence. If the statement is substantially true, the claim fails regardless of motive.
The defendant bears the burden of proving truth, which is a significant practical burden. Believing a statement to be true is not the same as being able to prove it in court years later.
Substantial truth suffices; minor inaccuracies that do not change the sting of the statement do not defeat the defence.
Fair comment
Fair comment protects expressions of opinion on matters of public interest, provided the comment is recognisable as comment rather than fact, is based on facts that are true and stated or sufficiently indicated, and is an opinion a person could honestly hold.
The defence fails if the plaintiff proves actual malice.
The fact-opinion boundary is where most arguments occur. Calling a statement “my opinion” does not convert an assertion of fact into comment.
Privilege
Absolute privilege attaches to certain occasions, statements in court proceedings and in parliamentary proceedings, and applies regardless of malice.
Qualified privilege attaches where the speaker has a duty or interest in making the statement and the recipient a corresponding interest in receiving it. Employment references and reports of suspected wrongdoing to the appropriate authority are common examples.
Qualified privilege is defeated by malice, and by exceeding the occasion, telling people who had no legitimate interest in receiving the information.
Responsible communication
A defence for communications on matters of public interest where the publisher acted responsibly, even if the statement turns out to be untrue.
The court considers the seriousness of the allegation, its public importance and urgency, the status and reliability of the source, whether the plaintiff’s side was sought and reported, and whether inclusion of the defamatory statement was justifiable.
It matters primarily for journalism and for public-interest publishing, and it recognises that requiring proof of truth in every case would chill legitimate reporting.
Deadlines, and anti-SLAPP
Two procedural points are decisive often enough to mention first in any assessment.
Claims concerning libel in a newspaper or in a broadcast require written notice within a very short period after the plaintiff becomes aware of the publication, and a short limitation period applies. Missing the notice requirement can end the claim outright, and it is measured in days rather than years.
Ontario also has anti-SLAPP legislation allowing early dismissal of proceedings arising from expression on matters of public interest. A plaintiff faced with such a motion must show the claim has substantial merit, that the defendant has no valid defence, and that the public interest in permitting the claim outweighs the public interest in protecting the expression.
A successful anti-SLAPP motion typically carries a full indemnity costs award against the plaintiff, which makes bringing a weak defamation claim about public-interest expression a serious financial risk.
Common questions
Is an online review defamatory?
A genuine opinion about a service is often protected as fair comment. A false statement of fact about the business is a different matter.
Do I have to prove I lost money?
For libel, damage is generally presumed. Proof of actual loss increases damages but is not required to establish the claim.
Can I sue over a private message?
Publication to at least one third party is required. A statement made only to the plaintiff is not published for these purposes.
What is anti-SLAPP?
A procedure for the early dismissal of claims targeting expression on matters of public interest, with significant costs consequences for the plaintiff.
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