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Communications Policy: Common Laws of Defamation in Canada

Info: 2135 words (9 pages) Law Essay
Published: 12th Nov 2020

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ABSTRACT:

 With the fast tech-tonic advancement of social media, defamation has become a major challenge that has prompted an effective policy to protect businesses as well as individuals. For this assignment; the communications law/policy issues examined in this course in-depth that I would be analyzing would be derived from the chapter of the text course on defamation using feminist and queer analysis. The fundamental objective of this article would be to explore some of the main and common laws of defamation in Canada as well as try to evaluate and determine defamation ought to be “constitutionalized” in a bid to ensure it complies with freedom of expression. This would be achieved by utilizing the comparative law approach among other analytical tools. According to the reading provided for completion of this assignment, there seems to be a misunderstanding of defamation whereby; there seems to be a limited sphere of jurisprudence that succinctly discusses upon issues of political culture, constitutional interpretation as well as social history. Therefore; this article will try to decipher the underlying reasons for this occurrence and how one’s speech constitutes defamation and possible charges that they may face if they are proved guilty.

BODY:

 According to the Canadian Charter of Rights and Freedoms, the freedom of press or self- expression is safeguarded by Section 2 of the Canadian constitution. Section 2 of the Canadian constitution asserts that “Everyone [has] the fundamental freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication” (Media Law). On the contrary; Section 1 states that the fundamental freedoms in democracy can be limited for justifiable reasons: “The Charter of Rights as well as Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Media Law) (Bannerman, Bruce & Julia, P. 58). Based on this; when wrongly used the freedom of expression can constitute tort among other offenses. One of the key objectives of defamation law according to the Canadian policy is to protect people or businesses’ reputation as well as good name from being tarnished by others.  In addition; chapter four of the text course on Canadian communication policy and law articulates that the same rights of expression also restricts freedom of speech because it can constitute to prosecution and therefore; it is imperative for courts to carefully balance these values when deciding or making a ruling in defamation cases.

Defamation according to chapter four on Canadian communication policy and the law is defined as an act of damaging one’s reputation or bringing dishonor of a person or an organization that can lead to prosecution. According to Canadian law, a person who has enough reason and evidence to believe that they have been defamed has the right to sue whoever defamed them and get justice for having their name or reputation tarnished. As cited in the provided text course; defamation can come in more than a few forms such as verbal statements, articles, blog posts, social media posting as well as email among other forms (Kenyon, P. 363). The most challenging thing about defamation is online because unless you can prove the origin of the statement it can be hard to prove a case because they usually come anonymously. This according to Canadian law experts becomes hard for one to sue for defamation and may also present severe consequences for casual users of the internet who may not be aware that their social media platforms are being used without their consent (Bannerman, Bruce & Julia, P. 99).

Libel defamation is one of the common forms of defamation and usually comes in form of newspaper articles, blogs, YouTube videos, emails as well as other forms of communication that can communicate a message. On the other hand, slander defamation involves verbal statements such as defamatory comments made towards a certain person. For example; one can say that John is a thief which according to slander can constitute defamation. Based on Feminist as well as Queer Analysis Feminist analysis on defamation law seems to be biased. According to the author in this book, defamation law treats women differently from men and in most cases men are mostly the plaintiffs in defamation law (Kenyon, P. 123). According to research based on Feminist as well as Queer Analysis, it has emerged that defamation law is mostly inaccessible to women as well as to the less wealth because in most cases only the elite in the society gets justice when it comes to defamation law. In addition; men tend to get higher damage compensation compared to women which justifies how biased defamation law is indeed biased (Bannerman, Bruce & Julia, P. 77).

Women have greater chances of winning defamation cases where their moralities, as well as chastity, have been defamed, however; when it comes to their occupational tarnishing they end up losing while on the other hand men tend to win more when their careers are defamed. According to Feminist as well as Queer Analysis, it is apparent that there is increased inequality when it comes to defamation law because it is never applied equally which leaves women more vulnerable to lose than men.

Defamation according to Feminist as well as Queer Analysis seems to be reinforced as well as reflected sexist attitudes about gender roles whereby; it has categorized women s subject for the impunity of immorality. In many cases; women are subject to prove that action of sexual allegation occurred in order for them to get justice whereas; men and especially the elite group in the society do not go beyond words and therefore; this leaves women at risk of losing defamation cases.

In many cases, sex workers are not protected against defamation and therefore; their quest usually falls on deaf ears. Based on Feminist as well as Queer Analysis and under the Libel law, sex workers cannot qualify for defamation cases because they lack morals and do not have qualities of defamation such as chastity among other necessities. Based on this; sex workers do not enjoy defamation rights or protection because they lack a reputation of chastity to protect, or basically are e deemed unworthy of such protection (Taylor & David, P. 256).

 Women have been considered as the property of their husbands for a long time especially in the nineteenth century and therefore; they were not allowed to launch any legal complaints against men and this seems to have affected the legal system to date. Today; even after making more than a few advances towards democracy and in ensuring gender parity is achieved; women still do not have the same equal rights as men because as cited in the provided reading; women are less likely to win defamation cases in court whereas; men win a lot of these cases. With the advent of the electronic mass media, such as radio, television, as well as especially the internet, the difference between the written as well as spoken word has become less important. In order to succeed in an action for defamation, the claimant must prove three things. First, that the material is defamatory. This means that it lowers the person's reputation in the eyes of the "right-thinking" person (Taylor & David, P. 234)

The second requirement for a defamation case to qualify and win is that the plaintiff must provide material items before the court.  Basically, this means that the plaintiff must prove that the defendant did indeed tarnish their reputation because failure to do so may lead to dismissal of the case.

Third, it must be proved that the material is communicated to or published for someone other than the person actually defamed. Once these three elements are proved, the action will succeed unless there is a defense. In Canada, statements can be defamatory even where there is no intent to defame someone. Therefore; it must be proved that the defendant had a bad motive as well as did this intentionally knowing it would harm or tarnish the name or reputation of the plaintiff.  For example, there may come a time when the defamer may argue that their comments are true and were not intended to harm the plaintiff and therefore; they made such remarks without malice. On the contrary; this does not mean that they cannot be prosecuted and therefore; the plaintiff can still successfully sue for defamation but only if the statements are not, in fact, true and if they are defamatory.

In the event of defamation, there are more than a few things that the plaintiff must argue in order to prove that indeed defamatory words actually were used and prove that it is worth to qualify for defamation. In accordance with the Canadian freedom for speech, defamation is deemed to have occurred if indeed the defendant used damaging words that could ruin the plaintiff’s reputation, lower them in the estimation of “right-thinking”.

Republishing defamatory material in accordance with the Canadian policy about freedom for speech can constitute defamation. In a bid for a defamation case to qualify and win the case before the court of the rule; the plaintiff must provide the court with defamatory evidence such as shaming materials among other requirements otherwise the case may not be heard or the plaintiff stands low chances of winning against the defendant.

The idea of tarnishing another person’s name can be costly and the main objective of Canadian communication policy and the law is to protect people against defamation. Defamation according to Canadian communication policy and the law is the use of electronic means or publish false allegations against an individual, company or non-profit organization and its repercussions can be huge. There are more than a few things that need to be met in order for a defamation case to be heard and qualify to be heard in the court. For example; there must be material evidence such as voice recorder or printed material among other requirements. Ideally; this means that if the plaintiff cannot provide such materials it is less likely for them to win a case on defamation.

CONCLUSION:

Slander has become a major challenge that has prompted an effective policy to protect businesses as well as individuals. For this assignment; the communications law/policy issues examined in this course in-depth that I would be analyzing would be derived from chapter of the text course on defamation using feminist and queer analysis. The fundamental objective of this article would be to explore some of the main and common laws of defamation in Canada as well as try to evaluate and determine defamation ought to be “constituitonalized” in a bid to ensure it complies with freedom of expression. According to the Canadian Charter of Rights and Freedoms, the freedom of press or self expression is safeguarded by Section 2 of the Canadian constitution. Section 2 of the Canadian constitution assert that “Everyone [has] the fundamental freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication” (Media Law). On the contrary; Section 1 states that the fundamental freedoms in democracy can be limited for justifiable reasons: “The Charter of Rights as well as Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Defamation according to chapter four on Canadian communication policy and law is defined as an act of damaging one’s reputation or bringing dishonor of a person or an organization which can lead to prosecution. According to the Canadian law, a person who has enough reason and evidence to believe that they  have been defamed has the right to sue whoever defamed them and get justice for having their name or reputation tarnished. As cited in the provided text course; defamation can come in more than a few forms such as verbal statement, article, blog posts, social media posting as well as email among other forms

Works Cited

  • Bannerman, S. Bruce, R. & Julia K. Canadian communication policy and law
  • Kenyon, Andrew T. "Libel and Defamation in Journalism." Oxford Research Encyclopedia of Communication. 2019.
  • Taylor, Lisa, and David Pritchard. "The Process is the Punishment: Criminal Libel and Political Speech in Canada." Communication Law and Policy 23.3 (2018): 243-266.

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