Explainer: Defamation law is technical, tricky, Saskatoon lawyer says

Explainer: Defamation law is technical, tricky, Saskatoon lawyer says

A Saskatoon lawyer explains defamation law in light of the Johnny Depp/Amber Heard defamation trial.

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An ongoing high-profile trial involving two Hollywood actors centres around the legalities of defamation. Johnny Depp is suing his ex-wife Amber Heard for $50 million, arguing she made untrue domestic abuse allegations about him in an op-ed that have ruined his ability to work. Heard says everything she wrote is true and is counter-suing for $100 million, alleging Depp defamed her.

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Saskatoon StarPhoenix reporter Bre McAdam spoke to Sean Sinclair, a Saskatoon lawyer specializing in media and defamation law.

Q: What is defamation? 

A: Defamation is a statement made by a person, about another person, that would negatively affect that person’s reputation, Sinclair says.

There are two types of defamation: libel and slander. Libel is a defamatory statement made in writing, and slander involves an oral statement. Sinclair says slander is harder to prove because the plaintiff would have to rely on third parties who heard the statement, in the absence of documented proof.

Q: How is defamation established?

A: In libel cases, a person has to prove that a statement has been made, that it refers to them and that it would negatively affect their reputation “in the minds of right-thinking individuals,” Sinclair says. This can involve calling additional evidence to show what kind of damage was done to their reputation or what kind of financial losses were suffered as a result of it.

“Defamation law is trying to create a balance between the right to freedom of expression on the one hand, and the protection of an individual’s reputation on the other,” Sinclair says. “(It) is considered to be a very technical area of law that can be tricky to deal with. It’s often very difficult to assess what kind of harm has been done to a person’s reputation.”

Q: Does defamation fall under civil or criminal law?

A: Sinclair says it can fall under both, but is normally dealt with in civil court in the form of a lawsuit seeking damages.

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Civil defamation only requires proof on a “balance of probabilities,” while criminal defamation has a higher burden of proof — beyond a reasonable doubt.

In a criminal case, the Crown would have to prove that the statement would “injure the reputation of a person by exposing them to hatred, contempt or ridicule or that the comment was made to insult the person.” Sinclair says he is not aware of any recent cases in Saskatchewan that have dealt with criminal defamation.

Q: What are the penalties?

A: While someone found criminally responsible of defamation would receive a sentence and criminal record, the person whose reputation was harmed doesn’t necessarily get any financial compensation, Sinclair noted.

In civil defamation, people can seek damages related specifically to loss of money or business. In the Depp/Heard case, Depp alleges he can longer get acting roles because of what Heard wrote.

Q: What are the defences? 

A: Sinclair says there are several defences that could quash a defamation suit. It appears Heard is relying on the defence of justification: that the statements she made were true.

There is also the defence of absolute and qualified privilege. A journalist reporting on a court proceeding or a government official making a statement in an official chamber like the legislature is protected by absolute privilege, Sinclair says. Qualified privilege involves someone who can prove they needed to make the statement to a specific audience, like someone making a police report about another person.

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The fair comment defence involves an expression of opinion based on a fact. The innocent dissemination defence comes into play when people publish third-party information that could be considered defamatory, but they are not necessarily responsible for the content of that material, Sinclair says. Examples include book publishers and hyperlinks on news articles.

Q: What about online defamation? 

A judge can order a defamatory statement that was posted online be taken down if the information is still in the control of the defendant, Sinclair says. In the Depp/Heard case, The Washington Post published the article, not Heard. Since Depp is not suing the newspaper, the judge likely cannot order the story to be taken down, he adds.

He says internet defamation has substantially changed things because defamatory statements can be made about people in different countries, and defamation laws can differ between jurisdictions.

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