A Defamation lawyers working in Media Litigation is generally understood to encompass print, television, Internet or radio media counsel, administrative or trial work such as pre-publication advice and copy clearing including libel reading, copyright, trade libel, invasion of privacy, breach of confidence, access under the various freedom of information statutes, freedom of expression/commercial free speech and other Charter of Rights and Freedoms issues, responding to subpoenas and search warrants against the media, contempt of court, publication bans, libel, slander and related tort litigation, and publishing and broadcasting contractual issues.
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While a defamation lawyer would concentrate on the institution of criminal actions on defamatory libel and/or civil actions for damages against mass media companies or private individuals who allegedly commits such crime or in their defense when hired by the defendant, they also do legal practice outside the courts.
On preventing a possible defamatory libel case to be filed against them, a defamation lawyer may do legal pre-publication review, sometimes called vetting, for these mass media corporations to proofread their materials if such are at risk of being labelled as defamatory. A defamation lawyer may also provide legal advises on journalists, publishers, writers, or authors on how to balance the exercise of the freedom of the press without circumventing the law on defamation.
The Constitution Act, 1982 of Canada, specifically under Section 2(b) of the Canadian Charter of Rights and Freedoms, provides that citizens enjoy the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
In this single sentence alone arises multiple freedoms that Canadians enjoy, namely – the freedom of expression, and freedom of the press. As an important aspect of democracy, citizens should be able to speak freely of their views, opinions, and ideas, and to widely express these in public. Corollary, the press and media are important tools in expressing these views, opinions, and ideas; hence, the freedom of the press and other media is also protected by the Constitution.
These twin freedoms are of great value especially when public matters are involved, such as conversations on public policies, criticisms of the government, and offering of solutions by the citizens on public issues.
However, similar with all other fundamentally protected freedoms granted to anyone – either by the Constitution or by statute – it is not absolute and may be limited by the Constitution itself either through the enactment of laws by the legislative, the promulgation of administrative policies when validly exercised by the executive, or by case law or common law. This limitations rests on the basic legal principle that the interests and the protection of the public is much more important than the exercise of basic freedoms of an individual.
Thus, one of the limitations on the freedom of expression and freedom of the press is defamation. The courts are tasked of striking a balance between these freedoms versus the prosecution of defamation. Since Canada is majorly a common law country (except for Quebec which has its own Civil Code), this role of the courts in setting these precedents are highly contentious, when it must carefully prevent a “libel chill” from existing, while still being able to punish libelous and malicious publications.
Defamation lawyers, whose main legal practice revolves around instituting court actions against or in the defense of persons or institutions who allegedly committed defamation, also applies constitutional law in their legal practice, since defamation is intimately connected with the constitutionally instituted freedom of the press and freedom of expression.
Generally, defamation is the act of publicly releasing or communicating false, malicious, or impartial information or statements against another person. This may be done through various media, such as print, radio, and television, with the recent inclusion of the online platform. Its conventional forms are libel and slander – libel is printed defamatory statements, caricatures, or images; while slander is spoken defamation.
The specific crime of defamatory libel in Canada is defined in the Criminal Code under Section 298(1) as a published matter that is damaging to a person by inciting or exposing that said person to hatred, contempt, ridicule, or insult. Such act under the Code should be without lawful justification or excuse on the part of the publisher.
To institute an action for defamatory libel, the following requisites or elements must be established by the plaintiff and their defamation lawyer by presenting convincing evidence according to each:
1. that the published matter is defamatory in nature when read or interpreted by a reasonable or “right thinking” person;
2. that the defamatory published material is attributable to the plaintiff, such that it can be identified to be targeting the plaintiff; and
3. that the defamatory published material is made available to the public, or communicated to more than one person, other than the plaintiff.
In addition, the plaintiff and the defamation lawyer must also prove that there has been no consent from the plaintiff for the violator to publish such defamatory material; that there was material injury to the plaintiff (and not just hurt feelings); and that there was actual malice on the part of the violator.
When pictures or caricatures are used, it must also be read in the context of the whole publication and must be understood in the perspective of a reasonable person to identify whether it is defamatory.
When the mass media, such as publishers (newspapers, books, etc.), television companies, or radio stations, are charged with the crime of defamation, various defences are available to them via the best defamation lawyers. Among those is qualified privilege, or absolute privilege. These two are applicable in different scenarios, and the differentiation would be best explained by a defamation lawyer. Below are some of its highlights:
Case law provides that a qualified privilege against defamatory libel occurs when the defendant either has (1) an interest or (2) a duty to communicate the “defamatory” document or material to a person who also has the same duty to receive such document or material. However, there are exceptions to the rule on qualified privilege, such as malicious intent on the part of the defendant, or when the defendant exceeded the authority granted to them.
Still based on case law, the defense of absolute privilege against defamatory libel applies when the “defamatory” document or material is communicated during (1) a judicial or quasi-judicial proceeding, (2) parliamentary proceedings, or (3) between government officials with regards to official state business.
The government entity which regulates the media in Canada is the Canadian Radio-television and Telecommunications Commission (CRTC). The CRTC is the administrative tribunal – hence, it is also a quasi-judicial body – which regulates the broadcasting and telecommunications sector in Canada.
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