The word « defamation » brings us in the context where the rights guaranteed by the Quebec Charter are clashing: freedom of expression against one’s privacy, dignity, honor and reputation of an individual. It is not surprising that balancing such serious matters is not an easy task, and, consequently, there is no one simple answer to the question “should I sue for defamation?” The Courts are usually looking into the context, circumstances, particular facts in every case. And even if you absolutely feel defamed, your judge might see it differently.
What is defamation
An allegation, verbal or written, is defamatory, if it attacks reputation, dignity and honor of an individual or an organization and incites unfavourable and unpleasant emotions towards them. Expression of hatred, mockery and disgust can be seen as defamatory.
Yet, there are certain caveats. First, a judge would analyse the situation from a third person’s perspective. It is not enough that you feel offended by some words. The Court might see those words not so much offensive, objectively speaking — in general and particularly in the context. The Court might even see those words justified.
This third person’s perspective is usually described as “if a reasonable person in similar circumstances would understand those words as offensive and, if so, would see those offensive statements as defamatory.”
The circumstantial analysis usually include the question if the offensive statements were actually widely spread and became known by other people. Personal (or phone) insults made in private are not usually seen as defamation, because there is no damage caused to the reputation. (There might be a question of harassment and intimidation, of course, but that is a different story).
Yet it is still not enough to publicly spread certain offensive statements to make them defamatory. People should actually believe those statements and therefore change their attitude towards the defamed person or organisation (and all this should be proven in Court, as you understand). There are known Court decisions where the judges refused to declare certain statements defamatory because “no reasonable person would believe” them.
Where defamation can be found
Verbal defamation includes public speaking or performance, singing a song, broadcasting (radio, televised or online) with particularly offensive text.
Written defamation might be found in a letter, an email, a text message, in judicial applications, in media or other publications, books, press-release, in a written announcement, disclaimer, on a poster, portrait, photo or in a caricature, etc.
Defamation can be direct and indirect. The latter might have a form of an implication, allusion, insinuation, speculation, irony, it might be presented in hypothetical, conditional or dubious way.
Bringing up a rumour, for example, even by way of asking questions about it, discussing some private information leaked, implying connection or causal link between some independent facts — might be, in the circumstances, defamatory. Even benign and veracious information might become defamatory if it is used to lead the public into making false conclusions.
Having said that, let’s remember that it important to take the words in their context.
Better ask your lawyer in advance
What if you are only thinking to spread some information? What if you are afraid that there might be a claim in defamation against you as a consequence? Maybe you are sure of your cause, yet you are not sure about the means chosen?
Well, what can we say — it’s better to visit your lawyer before doing something, when you have all the options available. This way you could avoid many unpleasant situations in the future, not to mention saving significant amounts of money.
This blog post contains only general information, please don’t take it for a legal advice. For all legal questions regarding your particular situation do not hesitate to consult your lawyer.
