A few excerpts from the book Libel by Peter Downard. (Cf. similar coverage of The Law of Libel and Slander in Canada.)

  • First of all, defamation is a provincial and territorial matter. In Ontario, the relevant law is the Libel and Slander Act.

  • You actually can defame someone using their own words (p. 17):

    Where a person’s own words are presented in a manner which distorts them, the effect may be considered to be especially damaging. In that case, the plaintiff is put in the more difficult position of having to explain an objection to words that came out of his or her own mouth and were believed to be true when spoken. In cases involving print media, the juxtaposition of words and images may also result in a person being held up to ridicule and contempt, even though innocent words are used.

  • You can defame someone using a series of articles even if you don’t actually impute anything defamatory in an article mentioning a person.

    In the case of a series of articles in a newspaper, prior articles may be considered for the purpose of determining whether a subsequent article was defamatory to the plaintiff even though the plaintiff may not have been referred to in the earlier articles. This may be so, for example, where the series has an overall theme of reporting on people of bad reputation, or improper conduct of a particular type.

  • Intent means nothing.

    Since the test for the “natural and ordinary meaning” is an objective one, the intention of the person communicating the words is irrelevant in determining the natural and ordinary meaning. The question is what the words meant to the ordinary reasonable reader, not what the defendant intended them to mean…. A defendant’s assertion that he was only jesting is irrelevant to the issue whether the words bore a defamatory meaning.

  • What is malice? Again, it has a specific meaning (p. 103):

    Malice is a dominant and improper motive on the part of the defendant comprising a desire to injure the claimant, intentional dishonesty, reckless disregard for the truth, or any ulterior motive that conflicts with the interest or duty created by the occasion. […]

    Intrinsic evidence is evidence provided by the defamatory publication itself. The wording may be “so violent, outrageous or disproportionate to the facts” that it furnishes strong evidence of malice. Tone of voice may be considered. […]

    Extrinsic evidence is evidence of surrounding circumstances…. Malice will have existed if the defendant’s dominant motive in making the statement was to injure the plaintiff…. Malice also exists if it is concluded that the defendant was reckless in the sense of being indifferent to the truth or falsity of the words [at] issue, so that it may be said that the defendant had no honest belief in the truth of the words….

    Evidence that, prior to publication, there were in fact no grounds whatsoever for the truth of the statement will be strong evidence of malice. A failure to provide the plaintiff with an opportunity to respond to an allegation before defaming the plaintiff is evidence of malice. A failure to make proper inquiries or a failure to investigate may be evidence of malice…. If correct information on a subject is readily available through a public source, a failure to check that source may be evidence of malice.

The foregoing posting appeared on Joe Clark’s personal Weblog on 2009.12.09 12:48. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is:

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