Writer Defamation – Introduction
Johnny Depp, the actor famous for portraying Captain Jack Sparrow in Disney’s beloved Pirates of the Caribbean film series, is in the news a lot lately. At the time this blog is being written, Depp is involved in a highly publicized trial against his ex-wife, Amber Heard. Depp is suing Heard for “defamation”.
This blog will unpack what exactly “defamation” is and will explain what you, as a writer, need to be aware of when preparing your next manuscript or screenplay to avoid being sued.
What is Defamation?
Defamation – which includes “libel” and “slander” – is a legal action in tort where one party alleges harm to their reputation as a result of the dissemination of false information. In other words, defamation is where one party accuses another party of spreading harmful lies.
The source of the law on defamation varies across Canada. In Ontario, the law on defamation can be found in the Libel and Slander Act. Libel refers to defamatory words that are part of a permanent record, typically, because they have been recorded in writing. Slander refers to defamatory words without a permanent record. These may be statements that are spoken out loud and may even consist of non-verbal communications.
To establish something is defamatory a plaintiff (that is, a person who is suing someone) must prove three elements:
- A statement was made by the defendant about the plaintiff;
- A reasonable person would conclude that the statement harms the reputation of the plaintiff; and
- The statement was communicated to at least one person other than the plaintiff.
This is a low very threshold. It is typically not difficult for a plaintiff to prove these three elements. Because a prima facie defamation suit is so easy to establish, defamation cases are usually determined by the defences.
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Defences to Defamation
For writers, the three most important defences against allegations of defamation are:
- True Statement/Justification – True statements are not defamatory. Once a statement is determined to be prima facie defamatory, there is a presumption that the words are false. A defendant can defeat a plaintiff’s claim by proving that the statement is true.
- Fair Comment –This defence is often relied upon in journalism, as it protects free expression. A defendant may be able to successfully defend a defamation claim if they establish their statements are comments on matters of public debate. For a defendant to succeed, the statements must be recognizable as comment (that is, an expression of opinion), be made without malice, based on proven fact, and relate to a matter of public interest.
- Responsible Communication on Matters of Public Interest – This defence is a favourite of media defendants, such as newspapers. The statement made must relate to a matter of public interest and the defendant must have attempted to verify the allegation. In other words, the question is whether the communication was made responsibly.
Other defences to defamation include Absolute Privilege, Qualified Privilege, Consent, and Innocent Dissemination. However, these defences are not usually relied upon by writers.
Questions and Considerations for Writers
With all of this legal discussion, the primary question remains: as a writer, what do I need to do to protect myself from a claim of defamation?
First, consider if the statement would be regarded as harmful to the person’s reputation in the eyes of a reasonable person. If the statement is not harmful, it is unlikely to be defamatory.
If the statement is likely to harm someone’s reputation, consider if the statement is true. If the answer is “yes”, then you have a good defence. If the answer is “no”, determine whether your circumstances place you and your statements within one of the recognized defences. If none of the defences apply, then you may be at risk of a claim.
Consider Changing Names
One way to reduce risk is to change the names within statements. Make up a new name for individuals instead of using real names. This is not an iron-clad strategy as a statement does not need to identify a person by name in order to be defamatory. However, it may help to disconnect your statement from real people, and thereby weaken the argument that your statement is harmful. Of course, in some circumstances simply changing a name may not be effective, especially where there are other details that are sufficient to identify a real person.
Consider the Purpose of the Statement
The last point to keep in mind is to ask what the overall purpose of your statement is. Defamatory statements tend to be critical. Ask what the purpose of the criticism is? Does the criticism add value to your story or serve a greater purpose? May it be interpreted to be an attack? Is it made with malice? Having a bona fide purpose may help to reduce risk of defamation. Statements made carelessly, without regard for the subject individual, and especially with malice, are more likely to be defamatory.
Writer Defamation Conclusion
Defamation can be intimidating for writers. However, it is easy to plan and be confident in your writing if you understand the law and its limits. Keep a critical eye on your writing – the truth of your statements, as well as the subject and purpose of them. Once you understand what defamation is you can write knowing where the line is drawn (hopefully). If you are a writer and have questions about defamation or publishing works, we encourage you to speak with Edwards Creative Law or another entertainment lawyer.
For information about other topics in publishing law, we encourage you to visit our blog entitled Collaborating with Other Artists and Other Writers.
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© 2022 Edwards Creative Law, LLP – Updated to April 11, 2022
Edwards Creative Law is Canada’s Entertainment Law Boutique™, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries.
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
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