Defamation is defined as communication about a person that tends to hurt their reputation. These communications cause people to think less of the subject of defamation.
To count as defamation, a person must have made the statement to others (meaning that private statements do not constitute defamation). Spoken defamatory statements are considered slander, while written ones are known as libel.
This article will look at a specific aspect of defamation that is especially relevant today, namely, the situation of online libel/harassment. We will explore:
- The general legal aspects of defamation law in B.C.
- What online defamation is
- Defences against a defamation lawsuit
To be successful in a defamation claim, the claimant must show that the communication made by the accused meets the following three requirements:
- The communication was defamatory (meaning it would lower the reputation of the claimant in the eyes of a reasonable person),
- The communication referred to the claimant, and
- The communication was communicated to at least one other person.
The jurisprudence in British Columbia leads to the conclusion that personal insults, which only injure the claimant’s pride, do not satisfy the test.
In British Columbia, the claimant must bring their lawsuit in the B.C. Superior Court –not to the Provincial Court—within the limitation period of two (2) years. This means the action must be served and filed within two years from the defamatory statement’s date.
Posting defamatory statements and harassing on social media
There are certain seminal cases which highlight the basic principles of online libel and slander, including the use of social media.
The case of Levant v Day (2017) involved several tweets that were defamatory in nature. The court concluded that the majority were ‘thinly veiled attacks’; however, some were more serious and warranted damages to the plaintiff. Essentially, the court established that libelous comments made as tweets do indeed constitute defamation in a legal sense. The court also stated that there was no defence of fair comment available.
There was also the case of Nanda v McEwan (2019), in which the Divisional Court held that the issue of whether WhatsApp communications constituted a ‘broadcast’ within the meaning of s.5(1) of the Ontario Libel and Slander Act should not be determined summarily. Although the two cases above are from Ontario Courts, their rulings have been referred to in British Columbia law, specifically in situations involving defamation.