The exception is defamation spoken over television or radio airwaves; this is legally considered libel instead of slander, because the harm reaches a wider audience at one time, as written defamation does.
If a competitor poses as a customer and tells people lies about your business with the intent to steal customers away from your business, this is slander, but you must be able to prove the intent to harm to have cause for legal action. This is not always easy, because the offense was oral. Slander is a civil offense, and legal action against slander is taken via a lawsuit in civil court. If something disreputable is said about the company in one part of a statement, but is qualified or corrected in another, the overall effect may not be defamatory.
The issue is not whether the defendant intended to refer to the plaintiff, but whether the people who read or hear the statement would reasonably understand it to refer to the plaintiff. The actual recipients of the defamatory statement must have associated it with the plaintiff. A business may be sufficiently identified even though it is not named, where a reference is made to something or someone over which it exercises control or for which it has some responsibility, for example, its directors or employees.
The essence of publication is communication of the defamatory statement to a person other than the plaintiff. Every instance of repetition of a defamatory statement is a separate wrong, with a separate potential claim resulting from it. This has important significance for limitation periods, which may restart years after the initial publication. Generally, a defendant will only be responsible for their own defamatory statement and not for republication by others, unless the defendant requests or authorizes someone to communicate defamatory remarks to others, the person to whom the original publication was made was under a moral, legal, or social duty to repeat or publish the words to someone else, or the republication was a "natural and probable consequence" of the original publication.
It is no defence that one is merely repeating someone else's defamation. Repeating a statement has the same legal consequences as making it in the first place. The Supreme Court of Canada has very recently confirmed that, generally, providing a hyperlink to a website on which defamatory material is posted will not make the person providing the hyperlink liable for defamation see "More Protection From Defamation Liability for Website Owners", p. If, however, the person providing the hyperlink adopts or endorses the contents of the hyperlinked defamatory page as their own, they may be liable for republishing the words themselves.
Truth also known as "justification" is a complete defence to a claim for defamation. The defendant must prove that their statement was true. The test is whether the published statements are substantially true in the setting, context and circumstances in which they were used. The defence of fair comment protects statements of opinion. It permits a person to comment on a matter of public interest, ranging from an attack on a politician's competence to a scathing restaurant review.
The Supreme Court of Canada has recently significantly broadened the defence. The test now only requires that the opinion be one that "anyone could honestly have expressed", including a person "prejudiced, exaggerated or obstinate in his views".
The defence of absolute privilege protects communications of traditionally special importance, where complete freedom of communication is considered crucial for society. Common examples are statements made in Parliament or court. The defence of qualified privilege applies where the defendant has a legitimate interest or a duty — legal, social, or moral — to communicate information, and where the recipients of the communication have a corresponding duty or interest to receive it.
It is sufficient that the defendant honestly and with some reason believed that such an interest or duty existed. In such circumstances, the defendant can "get it wrong" and still be protected from liability, because society does not wish to chill such communications. Occasions of qualified privilege in business include employee reference letters, credit reports and warnings issued by a company about the potential dishonesty or dangerousness of an employee or customer.
The Supreme Court of Canada recently confirmed a new defence of " responsible communication on matters of public interest ".
To establish it the defendant must prove the publication was on a matter of public interest and was responsible, in that the defendant showed diligence in trying to verify the allegations, having regard to all of the circumstances.
To qualify as a matter of public interest, the public must have some substantial concern about the subject, either because it affects the welfare of citizens or because it has attracted considerable controversy. Almost any statement concerning a business activity with a potential public effect could be protected, if the defendant exercised reasonable care in making the statement.
This defence is not only available to professional journalists, but is anyone who publishes material of public interest in any medium". It extends to bloggers and other online media. The defences of fair comment and qualified privilege will be defeated if the defendant was predominantly motivated by malice, or if the publication was excessive in terms of communication or distribution.
Malice is shown where the defendant published a falsehood deliberately or recklessly, without regard to its truth or falsity, or to advance an ulterior purpose rather than for the sake of the social purpose protected by the qualified privilege.
This ulterior purpose must be the dominant motive for the defamatory publication and is usually the desire to injure the person who is defamed. In a business context, the fact that the plaintiff and a defendant are bitter competitors will be helpful in leading to an inference that the defendant made the communication for the purpose of harming the plaintiff and improving its own economic interests.
The defendant may also lose a qualified privilege defence if the communication is sent to too many people, or contains additional statements unnecessary to achieve the social purpose of protecting the kind of communication in question.
The information communicated must be "reasonably appropriate in the context of the circumstances existing on the occasion when that information was given".
Traditionally, courts have treated individual plaintiffs and business plaintiffs very differently in awarding damages. A business plaintiff could generally only recover a nominal amount unless it could show the defamation had a direct effect its business: harm to its credit, or loss of customers or sales.
Recent case law indicates, however, that a corporation may now recover damages for injury to its reputation without proof of specific business loss. That said, potential corporate defamation plaintiffs should be cautioned that, absent proof of specific business loss, damages will likely be modest. Where the defamatory words are likely to produce a general loss of business, damage to loss of earnings or customers may be inferred. The U. Minnesota , U. Elements of a Business Defamation Claim.
The exact requirements for a defamation claim vary from state to state, but several elements are common across the country. A plaintiff claiming defamation must show that the defendant made a false statement of fact that concerned the plaintiff.
This element has several parts. First, the statement must be something that purports to be factual. Statements of opinion cannot be defamatory. For example:. Second, the statement must be about the plaintiff. Finally, the statement must be false. The plaintiff has the burden of proving this.
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