What are some of the fundamental laws in British Columbia relating to defamation?
Updated: Jun 10
Written by: Alfonso Chen
Widespread defamation can have very serious and long-lasting effects on innocent targets. For example, a saleswoman’s well-deserved and hard-earned reputation of being altruistic, easy-to-approach and caring towards clients can be eroded with a baseless false story virally spread through social media about that person’s pattern of disregard of clients’ interests. The target may suffer from significant mental anguish, among other consequences, after the defamatory statements are published.
On the other hand, people should be entitled to freely publish statements in many cases without fear of becoming liable for publishing them. For example, a former employer stating to a potential employer that the subject employee was often late for work, when the employee was indeed always late for work while working for the former employer, may rely on defences so as not to be held liable for defamation arising from the publication.
This article sets out the basic elements of defamation and a few defences available for an alleged defamer and is current as of August of 2019.
The Elements of Defamation
There are three basic elements that a person suing for defamation must prove. All three elements must exist for there to be defamation.
First, the statement alleged to be defamatory must refer to the party complaining that it was about that party. For example, the first element could be satisfied if the recipient of the statement can identify the statement to be about the complaining party, even if the statement excludes any mention of the complaining party’s name.
2. Third Party
Second, the defamatory statements must be communicated to third parties or a third party other than the alleged defamer and the complaining party. In other words, the statements must have been sent in comprehensible form and received and understood by a third party or by third parties. Publication does not need to be widespread.
Third, the statement must be defamatory in that it decreases a right-thinking member of society’s estimation of the subject. For example, stating to an auditor’s clients that the auditor has a pattern of consistently producing poor work in her or his capacity as an auditor, when the serious allegation is not true in any way, would satisfy the third element. Negative innuendos where external circumstances shed light to the actual meaning may satisfy the third element.
Who proves truth/falsity?
It is unnecessary for the complaining party to prove that the statements were false in order for the court to find that there was defamation. Instead, the alleged defamer can try to prove that the statements were true in order to not be liable for the defamation by relying on the defence of truth.
Including the defence of truth, otherwise known as the justification defence, there are several defences available to alleged defamers. If any of the defences to defamation are successfully established and accepted by the court, then the alleged defamer would not be held liable by that court for defamation for making the subject statements alleged to be defamatory. Two of the more common defences are set out below.