Summary of the Law of Defamation and its Application to Cyberlibel

AuthorDavid A. Potts
ProfessionBarrister, Bar of Ontario
Pages23-27
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.

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