September 27 , 2012
Week 3, Thursday
APlaintiff does not have to prove a defamatory statement is false.
The law requires the plaintiff to prove three things:
The statement refers to them, the statements were published of broadcast, and that they caused harm to
the reputation, and therefore capable of defamation
The plaintiff does not have to prove a negative e.g that she is not a racist or a criminal.
If all three elements are proven, the law assumes the plaintiff has suffered har,.
The burden then shifts to the defendant to prove the statement is true or falls within one of the other
As such, reporters and presumed guilty until innocent.
The plaintiff's case:
Plaintiff must formally notify the media outlet of the suit. Usually within three months of publication or
This gives the defendant a chance to review the statement and decide how best to respond. Most of the
cases never go to court, they are settled by a clarification, apology, or out of court settlement.
Media outlet mat stand by story and defend it or publish a correction, retract the story, or issue a public
for minor mistakes that aren't contentious, a correction or clarification is usually published the next day.
Defamation law requires that corrections must be as prominent as the offending article and that
apologies expressed must be genuine and express sincere regret.
Defamation damages in Canada were quite modest until 1990's
Six figure awards are now the norm.
Cover the plaintiffs tangible losses: lost job or business deal that fell through because of the defamatory
General damages:Address a range of concerns and usually bring the largest awards to compensate for
damage to reputation. (psychological damages etc)
Aggravated damages: may be assessed if the defendant has been subjected to humiliation, distress or
Punitive damages:Are rare and awarded to punish the reporter or media outlet that has acted with
malice (e.g publishing material they knew was false) Media's defences:
best defence is that it's true.
TRUTH: or justification
Truth is a complete defence to a libel action, but proving your case can be tricky.
Defendant must prove disputed statements to be true on a balance of probabilities.
Cannot rely on confidential or anonymous sources. Reliable witnesses must be produced.