DEFAMATION AND PUBLISHING: HOW AND BY WHO

Defamation against a party occurs where a statement is made about a party that is false and can cause damage to the party’s reputation. When a party feels that a defamatory statement has been made against them, a civil action can be brought to seek compensation for harm done to their reputation.

When such a claim for is brought before the Court, the complainant is required to prove the following three elements:

1. the words were defamatory, in the sense that they would tend to lower the reputation of the complainant in the eyes of a reasonable person;
2. the words referred to the complainant; and
3. the words were published, meaning that they were communicated to at least one person other than the complainant.

With respect to the third element, the Courts have given a broad interpretation as to what constitutes publishing. In the Ontario Superior Court of Justice case, Baglow v. Smith (2015), the Court stated that any act which has the effect of transferring the defamatory information to a third party can be considered to be “publishing”. As an example, sending letters to various government officials was sufficient to constitute publishing in the Ontario Superior Court of Justice case, Sayers v. Elie (2012).

With respect to who can communicate the material, the Ontario Court of Appeal in Lysko v. Braley (2006) and again in Gaur v. Datta (2015) reiterated that any person who participates in the publication of the defamatory material may be found liable to the complainant. In other words, it is possible to publish defamatory material indirectly where an individual instructs, permits or encourages another individual to publish the defamatory material, where the information was provided intending or knowing that it would ultimately be published.

Transferring defamatory material does therefore not have to be done at a large scale for it to be considered “published”. In addition, while you may not be the one who publishes the defamatory material, you may expose yourself to liability in a civil action, along with the publisher, if you are the source of the material that is published.

For more information, please feel free to contact Caitlin Cardill by email at [email protected] or by telephone at 613-563-6689.