2) Reference to the Plaintiff

The defamatory statement must be one that may reasonably be understood as referring to the plaintiff. The plaintiff may be identified by name, description, or context. Evidence of surrounding circumstances and extrinsic facts may be adduced to show the connection. The test is whether a reasonable person acquainted with the plaintiff would believe that the words referred to him. There is no need to prove that any person did, in fact, understand the statement as referring to the plaintiff. There is also no need to prove any intent or negligence in making reference to the plaintiff or to prove that the defendant knew or ought to have known of the plaintiff. In one famous case, a newspaper publisher was held liable when an author of an article in the paper made a defamatory remark about a fictional character (Artemus Jones) with the same name as the plaintiff lawyer. [Note 12: E. Hulton & Co. v. Jones (1909), [1910] A.C. 20 (H.L.).]

Defamation of a group or class of persons presents special problems. The key issue is whether or not the words can reasonably be interpreted as referring to and defaming each individual member of the group. The size of the group, the extravagance of the statement, the context of the statement, and any words of qualification must be taken into account. It is not, however, easy to determine when defamatory words said of a group impair the reputation of individual members of the group. To say, for example that "all law students cheat" is clearly not actionable by all law students individually. The statement is made of too large a group of persons. It is grossly extravagant and it would be understood by reasonable persons to be a gross exaggeration and generalization that could not seriously be intended to refer to each and every law student in Canada. However, to say that all law students who are members of a small seminar class or a study group cheat may have an adverse impact on the reputations of individual members of the class and may, therefore, be actionable. [Note 13: The rules relating to group defamation eliminate defamation as an effective remedy to minority groups subject to hate propaganda. Some jurisdictions have sought to overcome this absence of protection legislatively. See, for example, Manitoba The Defamation Act, above note 4, s. 19(1), which permits a person belonging to a race or a person professing a religious creed to seek an injunction to prevent the circulation of libellous statements that expose persons belonging to that race or religious creed to hatred, contempt, and ridicule such as to raise unrest or disorder among the people.]

3) Publication

Defamation protects reputation. It is, therefore, essential that the defamatory statement be published to a third person who heard it or read it and understood it. [Note 14: It probably does not, however, have to be understood in a defamatory sense: see Klar, above note 5 at 562.] Publication of the statement is the actionable wrong. Consequently, to call another a liar and a crook to his face, beyond the hearing of any third person, is not actionable in defamation. It may cause a good deal of distress to the person accused of such conduct and it may diminish his self-esteem but there is no loss of esteem in the eyes of others and his reputation is not impaired.

Publication does not entail any formal disclosure to large numbers of persons. Publication to a single person is sufficient. Indeed, each time a defamatory statement is communicated or repeated, a new cause of action arises. In general, there are good reasons for this rule. Each publication further erodes the plaintiff's reputation and the originator of the defamatory material may be judgment-proof. The production and publication of books, magazines, movies, and theatrical productions involves many sequential publications as the project moves from its creator through the production and distribution processes. These publishers are now treated as joint tortfeasors all of whom must be joined in one cause of action. There is also support for a one-publication rule operating from the time of general release of the defamatory work, to avoid jurisdictional and limitation problems arising from subsequent distribution, sales, or performance of the defamatory material.

The rules about publication have been qualified to avoid an intolerable burden on innocent mechanical distributors of publications containing defamatory material. A distinction is drawn between the producers and the innocent disseminators of widely distributed print or visual defamatory material. News vendors, book distributors and retailers, libraries, video stores, and, in some circumstances, printers are not liable if they have no knowledge of any defamatory content in the material and no reason to be suspicious that the material contained defamatory material and if they have exercised reasonable and practical steps to vet the material. [Note 15: Vizetelly v. Mudie's Select Library Ltd., [1900] 2 Q.B. 170 (C.A.).] The liability of innocent disseminators, therefore, depends upon proof of fault. [Note 16: Canadian courts have yet to deal with the problems of publication arising from the Internet, including whether or not Internet server providers (ISPs) and the administrators of bulletin boards and newsgroups are liable for defamation posted by others or whether they are innocent disseminators of the defamatory communication.]

The strict liability for defamation is also alleviated to some degree by the requirement that the publication must be intentional or due to a lack of care, such as leaving defamatory material where others may see it or making verbal defamatory statements in circumstances where it is foreseeable that others may overhear the conversation. [Note 17: See, for example, McNichol v. Grandy, [1931] S.C.R. 696.] An accidental publication is not actionable.

A defendant is not normally responsible for the republication of a defamatory statement by another person. There are, however, exceptional circumstances, including those where the republication was authorized or intended by the defendant or where the republication of the statement was likely to occur. In those circumstances it is reasonable that the original publisher continues to bear some continuing responsibility.

CHAPTER 7, DEFAMATION

D. LIBEL AND SLANDER

At common law, defamatory statements are categorized as either libel or slander. Originally, the distinction turned on whether the communication was written (libel) or verbal (slander). Libel is viewed as the more serious form of defamation because of its permanence, the greater likelihood that it was premeditated, and its capacity for wider dissemination. It is actionable without proof of special damage. Slander is, in contrast, more likely to be transient and impromptu and its publication is limited to those within hearing distance of the defendant. As a general rule, it is actionable only on proof of special damage. This has proved to be a difficult distinction to apply with the advent of modern communications such as radio, film, television, facsimile transmission, e-mail, and Internet postings. Happily, many provinces, including Alberta, Manitoba, New Brunswick, Nova Scotia, and Prince Edward Island, have legislatively abolished the distinction between libel and slander. In those provinces all defamatory statements are actionable without proof of special damage. In the provinces that maintain the distinction, there has been some adjustment in the traditional meaning of libel to accommodate modern circumstances. In general, emphasis is now placed on visibility and permanence as the primary characteristics of libel so as to include film and possibly e-mail and other computer communications. There has also been some legislative reform categorizing television and radio broadcasts as libel. [Note 18: See, for example, Ontario Libel and Slander Act, above note 4, s. 1(1) and s. 2.]

The only significant substantive difference between libel and slander that remains in the common law relates to the proof of damage. As noted above, damage is presumed in libel, and in slander special damage must be proved by the plaintiff. Special damage includes any material or financial loss. It does not include embarrassment or emotional distress caused by the slanderous imputation. There are, however, four categories of slanderous statements which, because of their seriousness, are actionable without proof of such damage. They include imputations of criminal wrongdoing of sufficient seriousness to warrant imprisonment, the imputation of unchastity in a woman, the imputation of an infectious or contagious disease that might cause a person to be avoided or shunned, and statements that reflect adversely on a person's character with respect to her trade, profession, or business.

CHAPTER 7, DEFAMATION