Summary of the Law of Defamation and its Application to Cyberlibel

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 23-27

23

 : Summary of the Law of

Defamation and its Application to

Cyberlibel

A. THE LAW AS STATED BY THE SUPREME COURT OF

CANADA IN GRANT v. TORSTAR CORP.

e Supreme Court of Ca nada in Grant v. Torstar Corp.,  SCC  , suc-

cinctly and authoritatively, sum marized the claim and the defences of the

law of defamation in Canada at paras. –:

A plai nti in a defamation action is required to prove three things to ob-

tain judgment and an award of da mages: () that the impugned words were

defamatory, in the sense that t hey would tend to lower the plainti ’s reputa-

tion in the eyes of a reasonable person; () that t he words in fact referred to

the plainti ; and () that the words were published, mea ning that they were

communicated to at lea st one person other th an the plainti. If these ele-

ments are established on a balance of probabilities, fa lsity and da mage are

presumed, though t his rule has been subject to st rong criticism: see, e.g.,

R. A. Smolla, “Balancing Freedom of Expression and Protect ion of Reputa-

tion Under Canada’s Charter of Rights and Freedoms,” in D. Sc hneiderman,

ed., Freed om of Expres sion and the Charter (), , at p. . (e only

exception is that slander requires proof of special dama ges, unless the im-

pugned words were slanderous per se: R. E. Brown, e Law of Defamation in

Canada (nd ed. (loose-leaf )), vol. , at pp. - and -.) e plainti is not

required to show that the defendant intended to do harm, or even that the

defendant was careless. e tort i s thus one of strict liability.

If the plainti proves the required elements, the onus then shis to the

defendant to advance a defence in order to escape liabi lity.

Both statements of opinion and statements of fact may attract the de-

fence of privilege , depending on the oc casion on which they were made.