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Intention Not The Key to Defamation

One 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 person’s 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.

A statement is likely to be defamatory if it tends to diminish someone’s reputation in the estimation of others. It doesn’t matter whether the intention is to defame; it is enough that the defamatory statement was made.
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.

As 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.

Most 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.

There 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.

The 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.

Another 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.

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