Not The Key to Defamation
of the legal issues that arises in film and television production,
particularly in reality-based programming, is defamation. The law
of defamation is concerned with the protection of a persons
reputation. It is a complex area of law, and one in which there
is a great deal of subtlety and nuance. As well, there is often
considerable tension between the law of defamation and rights of
free speech. One of our jobs as production counsel is to advise
clients on how to best navigate these waters.
is likely to be defamatory if it tends to diminish someones
reputation in the estimation of others. It doesnt matter whether
the intention is to defame; it is enough that the defamatory statement
The context of a statement is important in deciding whether it is
defamatory. A court will consider not only the actual words used,
but also the overall tone of a piece. Many times the bare words
alone will not constitute defamation, but in a particular context,
with a certain tone or delivery, the words might gain a defamatory
meaning. There are many ways to create emphasis in a piece. Just
keep in mind that judges will be alive to these issues and will
not restrict their analysis to a clinical reading of the bare words.
a general rule, only an individual can be defamed a group
cannot and that individual must be identifiable. There are,
however, some circumstances in which a statement about a group might
be defamatory of one or more individuals within that group. One
of the factors you must consider in such a situation is the size
of the group. The larger the group, the less likely it will be that
a statement concerning that group will be considered by the public
as referring to an individual within the group.
statements can be characterized as one of two types: fact or opinion.
The distinction between fact and opinion is not always clear, and
often turns as much upon the presentation of the statement as it
does upon the substance of the statement. This distinction becomes
important when we consider the numerous defenses to claims of defamation.
Truth is a defense to a claim of defamation, but only if the statement
is one of fact. If the statement is more an opinion than a fact,
then truth is not available as a defense. This is because opinions
are neither true nor false, they are simply opinions; only facts
can be true or false.
are numerous defenses available to someone who has published an
opinion that might be defamatory, but one of the most common is
the defense of fair comment. A statement that is otherwise defamatory
can be protected if it is made honestly, in good faith, without
malice and it relates to a matter of public interest. In order to
attract this defense you must present the statement clearly as comment
(that is, opinion). If you dress up an opinion as fact,
then the defense of fair comment will not be available to you.
context of the piece containing the statement is also important
in determining whether it is defamatory and whether one or more
defenses saves it. For example, there is more leeway in the context
of a program based on comedy or satire than there is in a news-type
program. There are various reasons for this, but the distinction
is based partly upon the notion that viewers expectations
are different for a news program than for a satirical program. In
the former, the expectation is that the information presented is
factual, whereas in the latter the general expectation is that the
material is less factual and is to be taken less literally.
consideration important to the film and television industry is that
the laws of defamation in the United States are different from those
in Canada. While the results are often very similar, the reasoning
process is different and can lead to different conclusions.