Defamation -Libel and SlanderDefamation can occur in two different formats – written or verbal. When a defamatory statement is written, it is referred to as libel, and when it is spoken it is referred to as slander. Defamation is the claim that is advanced when another person’s words cause injury to your reputation. An interesting part of defamation cases is that damages are essentially presumed for damage to your character and reputation. However, damages are not limited to just an abstract amount for how much worse you are now perceived in the eyes of the public, all damages that naturally flow and can be casually linked to the defamatory statements can also be awarded against the Defendant. This means if as a result of the defamation you have had to take counselling, lost a promotion, or have not been able to get as many clients or sales in your business, then those losses can be recovered against the Defendant.
Nowadays most instances of defamation occur over social media platforms, which allow an audience that includes both your contacts, as well as the whole world potentially. Resharing defamatory information is now fairly trivial, and adds to the spread of the misinformation. Unfortunately, defamation cases are relatively complex as there are numerous defences available such as truth or justification, absolute or qualified privilege, and fair comment. Insurance coverage is generally not available for Defendants so they will be out of pocket to advance their defence and protect their personal assets.
A new hurdle for Plaintiffs in defamation cases is the Protection of Public Participation Act introduced by the B.C. NDP is March 2019. This is sometimes referred to as an anti-SLAPP statute, with SLAPP short for Strategic Litigation Against Public Participation. It aims to provide protection to individuals and companies that find themselves facing a defamation claim for something that they said as a matter of public discourse – such as negative commentary about a politician or other individual.
This legislation is fairly unique in B.C. as it essentially raises the bar for Plaintiffs in defamation cases and requires them to show that if the Defendant’s statements relate to a matter of public interest then the case has to be dismissed unless the proceedings have substantial merit, the Defendant has no valid defence in the proceeding, and the harm to the Plaintiff outweighs the public interest in protecting that speech. If they are unable to meet this hurdle, the case can be tossed out at a relatively early stage with actual legal costs payable by the Plaintiff to the Defendant, as well as damages in favour of the Defendant.
Libel and slander cases require quick action to stop further spread of the defamatory statements, as well as preservation of evidence to show how widespread it got, and how many people viewed it. Defamatory statements can be posted on social media accounts very quickly, and just as quickly be deleted with little trace of them, which would make proving your case difficult.
Many social media websites allow you to report posts for a variety of reasons. If enough distinct individuals report a post, sometimes it will be taken down without a review by the social media team which can be a quick and effective way to cut off the head of the snake, so to speak. Other options to contain the spread quickly include ex parte injunctive applications to Supreme Court.
After the spread has been stopped, a Plaintiff should keep detailed records of the number of their friends, family, and strangers contact them to corroborate and prove the extent of the spread, and how their impression of the Plaintiff has changed. Call records should be kept, as well as screenshots and backups of all text messages, social media messages, and e-mails. Business records that show a change in new business, clients leaving, or a decrease in effectiveness of pay-per-click or AdWords campaigns are also critical to prove economic loss.
Given the new Anti-SLAPP legislation in B.C. Plaintiffs realistically need to consult a lawyer to understand if they are at risk of their case being dismissed prematurely and exposing themselves to both a costs award, and also damages from the other side.
We handle all aspects of the case from initial consultation through to trial. At early stages, we assist defamed individuals, companies, on both the Plaintiff and Defendant’s side. We help companies that have been the target of negative reviews on websites such as Google, Yelp, and Facebook to get those posts removed, usually prior to having to proceed through Court.
For cases in which you do not know the identity of the person that defamed you, we have a network of other lawyers in other jurisdictions that we can call upon to obtain disclosure orders from Google, telecommunications companies, and Internet Service Providers, as usually such orders must be made where the company is headquartered, which often times will be in California or Ontario.
If the libel or slander is made by an individual, we will perform due diligence to determine what exigible assets can be located, and the prospect of getting paid on your judgment if you are successful at trial. We do not want you to end up with a dry judgment, however some people do wish to go to trial to clear their name and make a statement, which we understand and respect.
Trial can be a costly and uncertain endeavour, but sometimes it is the only route available to get justice.
An initial consultation will focus on understanding your outcomes and the best and most practical way to achieve them. Some forms of defamation, while unflattering, will realistically not be remembered by those that heard or read about it and will not show up on a Google search by future employers. Those cases also tend to have prospective Defendants with few assets and low income, which usually means that a full trial proceeding will be costly and unlikely to result appropriate compensation to justify the risks. Actions short of full trial, such as the threat of litigation, or obtaining an injunction, may be quick and relatively economical ways to achieve 90% of what a client wants.
For cases that cannot be resolved quickly we work with you to determine the best litigation path, considering all factors including Anti-SLAPP legislation, prospect of recovery, and that sometimes a proceeding causes the defamatory statements to be repeated and actually aggravating the damage – something called the Streisand effect. If necessary and appropriate we can apply for an anonymization order, a publication ban, or a sealing order.
Pre-judgment garnishment, or otherwise obtaining security of any form for a future judgment award is relatively rare. The most common pre-trial applications involve injunctions to prevent the further dissemination of the defamatory material, or identity of the defamer – which is often called a Norwich Pharmacal Order.
Depending on the defence mounted, there may be an application under the Protection of Public Participation Act, which will often be highly contested as it requires the Plaintiff to essentially prove their case to a higher threshold than they would at trial. As part of such an application, any affidavit tendered in support can have the affiant cross-examined as of right. There are also processes for document discovery, so while it is technically a preliminary application, it can more or less feel like the full trial.
In our experience few defamation cases can be resolved by way of a summary trial, and given that most Defendants are insured, offers to settle are generally low and unattractive. Your case will then proceed to the discovery stage in which documents are exchanged and parties, including the Defendant can be examined under oath before the trial proper. If the Defendant is unwilling or unable to get certain information, such as electronic data containing metadata or geodata, then there are procedures for obtaining that from third party record holders, such as Facebook, Google, and telecommunications companies.
In our experience Defendants in defamation cases usually plead multiple defences, including the defence of truth or justification, which dramatically increases the number of witnesses and length of the proceedings as a central question before the Court are whether the statements were in fact true.
We also continue on to assist with post-judgment remedies, including execution on exigible assets such as real property, vehicles, and garnishment of wages.
For Plaintiffs preliminary steps prior to commencing court proceedings, such as removal of negative reviews on Google, and stopping the spread of defamatory material on Facebook are done on an hourly rate. An hourly structure also extends to our work to exercise due diligence on the Defendant to determine the likelihood of recovering any judgment against them. If we are satisfied with the strength of your case and ability to recover, we may offer to do the case on a contingency, or a reduced hourly rate with a partial contingency.
For Defendants, because of the availability of full indemnity for legal bills if you are successful on an Anti-SLAPP motion, we can offer a deferred hourly rate, with a discount if we are unsuccessful. Defendants in libel and slander cases are not offered any work on a contingency basis.
As all defamation cases are done in Supreme Court, if you are unsuccessful then you will likely be entitled to an award of costs which will offset a healthy portion of your legal fees.
Contact us either at (604) 259-6200 or using the form below for assistance with Defamation – Libel and Slander.
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.