Is This Defamation? Understanding Defamation Law In BC
Defamation Law in BC: Libel, Slander & Online Reviews
Have you or your business suffered a loss as a result of someone else’s words? Conversely, is someone alleging that you have caused them harm because you shared a review online? It can be hard to tell whether a person has a legitimate claim for defamation under the law. This article provides basic information about defamation law in BC.
The basic elements of defamation in BC
There are three things which must be proved for a defamation claim to be successful. As set out in the case of Grant v. Torstar Corp., 2009 SCC 61, (1) there must be a defamatory statement, (2) the statement must refer to the plaintiff, (3) the statement must be communicated to a third party. Once these three things have been proved the person being accused of defamation must put forward a defence to escape liability. If it has been proved that a defamatory statement referring to the plaintiff was made to a third party, it is presumed that the statement was meant to cause harm to the reputation of the plaintiff.
Libel vs. slander
Libel and slander both fall under defamation. The difference between libel and slander is the method by which the statement is communicated to third parties. Libel is typically recorded in some form and shared. Under BC’s Libel and Slander Act, RSBC 1996, c 263 defamatory words in a broadcast are deemed to be published and to constitute libel. Social media posts also fall under libel. Slander is shared with third parties in passing, typically through verbal statements. It is easier to prove damages for libel than for slander. This is because slander generally requires proof that a loss has resulted from the defamatory statement, whereas when libel is made out there is a presumption that the statement was meant to cause harm.
Key defences
There are a number of defences against a defamation claim. If the defendant can prove that the allegedly defamatory statement is true, this is the defence of truth or justification. There is also the fair comment defence, which can be found under s.6.1 of the Libel and Slander Act. The fair comment defence protects people expressing an opinion. The defence of qualified privilege applies where a person has a duty to communicate the allegedly defamatory statement to a third party. Finally, responsible communication on matters of public interest is a defence for making allegedly defamatory statements as well.
Online reviews and social media specifically
The question then becomes whether a successful defamation claim can be brought against a person for posting reviews online and, specifically, on social media. There is tension between genuine consumer complaints and opinions, and defamatory claims. Courts are cautious about preventing legitimate criticism. Online reviews and posts to social media are often protected under the defence of fair comment (as described above). That being said, in the case of Level One Construction Ltd. v Burnham, 2018 BCSC 1354 it was explained that the fair comment defence can be defeated, if it is shown that the person who made the statement acted maliciously.
BC’s anti-SLAPP law
The Protection of Public Participation Act allows for quicker dismissal of Strategic Lawsuits Against Public Participation (“SLAPP”). It lets defendants get early dismissal of lawsuits that target public-interest expression, which affects strategy on both sides. If an application to dismiss the proceedings is made under this legislation, it must be shown that the proceeding arises from an expression made by the person making the application and that the expression relates to a matter of public interest. If this first step is proved, the onus is then on the other side to prove that there are grounds to believe that the proceeding has merit. They must also prove that the applicant has no valid defence in the proceeding and that the likely harm to the respondent is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.