Libel and How to Avoid It

Defamation & Libel

Canadian common law protects all persons from derogatory remarks that harm their reputation but all Canadian provinces also have laws that protect citizens against “defamation” in its various forms. Verbal defamation is called “slander” and written defamation is called “libel.”

According to canlaw.com, the major points of defamation law in Canada are as follows:

  • Defamation is a “strict liability” tort. In other words, it does not matter if the defamation was intentional or the result of negligence. Defamatory material is presumed to be false and malicious. “Whatever a man publishes,” according to one case, “he publishes at his peril.”
  • Defamation must be a direct attack on an actual reputation, not an alleged reputation that a “victim” believes they deserve. A judge will assess the statement against the evidence of the victim’s reputation in their community.
  • The remarks must be harmful (i.e. “defamatory”) and this will be assessed on a case-by-case basis. Some statements are clearly defamatory. Other statements would only be defamatory to the person targeted by the remarks. What may be a nonsensical or mildly offensive remark to one person may constitute serious defamation to another. The judge will consider the situation of the person defamed in assessing the claim of defamation.
  • The defamatory remark must be clearly aimed at the plaintiff. General, inflammatory remarks aimed at a large audience would not qualify since the remarks must be clearly pointed at a specific person or an identifiable group of people.
  • The defamatory remarks must be somehow conveyed to a third party. With libel, the damage is presumed the moment it is published.

In order for you to have committed libel, the plaintiff in the case against you will have to prove that four conditions have been met:

  • The statement is false.
  • The statement has a defamatory meaning.
  • The allegedly injured party is clearly identified in the statement.
  • The statement has been published.

If all four conditions are not met, an action for libel will not prevail. Therefore, you must be familiar with these four elements and what a plaintiff must do in order to prove that the four conditions have been satisfied.

Alternatively, to successfully defend against a charge of libel, the defendant must confirm the following four conditions have been met:

  • The statement is true.
  • The statement is not defamatory.
  • There is no clearly identifiable injured party.
  • The statement has not been published.

If all four conditions are met, an action for libel will not prevail.

Avoiding Libel

  • Avoid slipshod, indifferent or careless reporting. Whenever a statement could injure someone’s reputation, treat it like fire. The facts of a story should be confirmed and verified, as far as practicable and in accordance with usual news gathering procedures.
  • Truth is a defense, but good intention in reporting an untruth is not. Remember, there may be a vast difference between what’s true and what can be proved to be true to a jury. When in doubt as to whether a story is libelous, do not publish or broadcast it until you are sure it is not libelous. Remember, a retraction is not a defense to a libel action but serves merely to mitigate or lessen damages.
  • Try to get the “other side of the story.” A good reporter sticks to the facts and not to some bystander’s opinion of what might be the truth if the facts were known. The eventual “write‑up” of a story should be objective and never colored by the enthusiasms or opinions of the reporter.
  • Particular care should be taken in publishing quotations. The fact that a person is quoted accurately is not in itself a defense to a subsequent libel action, if the quoted statement contains false information about someone.
  • Never “railroad” a story through, but instead write it, check it out and edit it carefully to make sure it is accurate and says precisely what you want to say.
  • If an error has been made, always handle demands for retractions that come from a lawyer for a potential plaintiff with the advice of legal counsel. A well ­meaning but unnecessary or poorly worded correction may actually prejudice a publisher’s or broadcaster’s defense in a subsequent lawsuit.

In Addition: Good Principles for Ethical Journalism

The Canadian Association of Journalists (CAJ) offers these statements as their guidelines for ethical journalism:

  • We are disciplined in our efforts to verify all facts. Accuracy is the moral imperative of journalists and news organizations, and should not be compromised, even by pressing deadlines.
  • We make every effort to verify the identities and backgrounds of our sources.
  • We seek documentation to support the reliability of those sources and their stories, and we are careful to distinguish between assertions and fact. The onus is on us to verify all information, even when it emerges on deadline.
  • We make sure to retain the original context of all quotations or clips, striving to convey the original tone. Our reporting and editing will not change the meaning of a statement or exclude important qualifiers.
  • We credit the originating source of our information.

CAJ on Ethics in Digital/Social Media:

  • Ethical practice does not change with the medium. We are bound by the above principles no matter where our stories are published or broadcast.
  • We consider all online content carefully, including blogging, and content posted to social media. We do not re-post rumours.
  • The need for speed should never compromise accuracy, credibility or fairness. Online content should be reported as carefully as print content, and when possible, subjected to full editing.
  • When we publish outside links, we make an effort to ensure the sites are credible; in other words, we think before we link.
  • When we correct errors online, we indicate that the content has been altered or updated, and what the original error was.
  • We encourage the use of social networks as it is one way to make connections, which is part of our core work as journalists. However, we keep in mind that any information gathered through online means must be confirmed, verified and properly sourced.
  • Personal online activity, including emails and social networking, should generally be regarded as public and not private. Such activity can impact our professional credibility. As such, we think carefully before we post, and we take special caution in declaring our political leanings online.

Sources used in compiling the above material:

http://www.netplaces.com/writing-nonfiction/the-ethics-of-writing-nonfiction/four-elements-of-libel.htm

http://panewsmedia.org/legal/legaltopics/avoidinglibel

http://www.canlaw.com/caveat/copy%20of%20defamation.htm

http://www.rcfp.org/first-amendment-handbook/advice-avoiding-libel-suits

http://www.caj.ca/ethics-guidelines/

Note that some of the above sources are American but they elaborate the same principles that Canadian Law demands. They were excerpted here due to their clarity in conveying the points above.