by Andi Benjamin
Although the role of editors may be downplayed (especially in these times), this job comes with immense responsibility to get the right message across. Andi Benjamin again shares her legal knowledge with us, this time on identifying possible defamation issues and what to do about them.
Editors are known for their wide range of skills and breadth of knowledge. They can analyze the structure of a complex document, identify gaps and inconsistencies, and tell the difference between a colon and semicolon. But editors also need to recognize when a manuscript might raise legal concerns and know when to flag them to an author or publisher. For example, editing can raise issues around copyright and plagiarism, which I explored in my last article. This time, I’m looking at another important area of law: defamation.
What is defamation?
Under Canadian common law, defamation occurs when words would tend to lower a person’s reputation in the eyes of a reasonable person. This definition is set out in the 2009 Supreme Court of Canada case Grant v Torstar Corp., which involved a dispute over Toronto Life’s publication of allegedly defamatory statements about businessman Peter Grant.
Defamation can take the form of libel or slander. The main difference between the two is how the defamatory statement is communicated. Slander generally refers to spoken defamation, while libel refers to defamation communicated in writing or published content. For example, a newspaper article falsely accusing someone of committing a crime could constitute libel, and a person making the same accusation verbally could be sued for slander.
A plaintiff (the person who claims their reputation has been harmed) bringing a defamation action needs to establish that
- the words are defamatory,
- the words refer to the plaintiff, and
- the words were published to a third party.
If the plaintiff proves all three elements on a balance of probabilities, the basic requirements for a defamation claim have been met, and the defendant (the person alleged to have defamed the plaintiff) will generally need to rely on one of several defences, as explained further on.
A key distinction in defamation law is the difference between fact and opinion. A fact can typically be verified as true or false, while an opinion expresses a view, judgment, or interpretation.
How defamation issues can impact editors
Editors can risk committing defamation because editorial decisions impact the meaning of a text. Changes to wording, context, or attribution can affect how a reader understands a statement and, in some circumstances, whether it could be defamatory. The following are common situations where editors might encounter defamation issues:
- Meaning and context
An edit can change the meaning of a statement by altering its wording, removing important context, or dropping a qualification.
For example, consider the difference between “Marsha was accused of stealing groceries” and “Marsha stole groceries”. The first version makes it clear that Marsha was accused of stealing, while the second presents Marsha’s theft as an established fact.
Removing important context can also influence how a reader understands a statement. A report might explain that a business was investigated for embezzling funds, but there was insufficient evidence to lay charges. Omitting the information about insufficient evidence could leave readers with the impression that the business did indeed embezzle funds.
Editors should pay close attention to qualifications. Terms such as “alleged”, “according to”, and “the plaintiff claims” can signal that information is either disputed or attributed to a particular source. That said, these terms are not a magic shield; they don’t automatically prevent a statement from being defamatory.
- Attribution and allegations
Editing allegations or claims made by someone else can also be risky. Attribution can help clarify that a statement is an allegation rather than an assertion of fact by the author or publisher. For example, “a former employee accused the CEO of falsifying records” involves attribution to the former employee and is materially different from “the CEO falsified records”.
As with qualifications, attribution does not necessarily protect a publication from a defamation claim. To better evaluate the situation, consider whether the source is identified, whether the allegation is accurately reported, and whether the wording fairly reflects what the source actually said.
- Headlines and captions
Headlines and captions can raise defamation issues even when the text itself provides more context or nuance. For example, an article might explain that a company was accused of fraud, while the headline simply states “Company Committed Fraud”.
Because headlines are often the first (and sometimes the only) part of an article that readers see, they deserve careful review. A misleading headline can create problems even when the article itself is accurate and appropriately qualified.
Key defences against defamation claims
The main defences to defamation claims are outlined in Grant v Torstar Corp. Whether a particular defence is available depends on the circumstances, but the following are the most relevant to editors.
- Truth
Truth, or justification, is a complete defence to a defamation claim. If Marsha actually stole groceries, stating that she stole them would not be defamatory because the statement is true.
- Fair comment
The defence of fair comment1 can protect certain expressions of opinion on matters of public interest. This was illustrated in Wic Radio Ltd v Simpson, a 2008 case about a controversial radio host who made critical comments about a local community activist. The Supreme Court of Canada held that the defence of fair comment applied to the comments in question.
As noted earlier, editors should take care to distinguish opinions, which may qualify as fair comment, from statements presented as facts.
- Responsible communication
The defence of responsible communication also applies to publications on matters of public interest. It can protect publishers from defamation claims where they acted responsibly in gathering and reporting information, even if some of that information later turns out to be inaccurate. Responsible communication requires the publisher to have taken reasonable steps to verify the information before publication, which may include checking sources, seeking confirmation, and giving the subject an opportunity to respond where appropriate.
- Privilege
Privilege is another legal protection for certain communications, even if they contain defamatory statements. There are two types of privilege. Absolute privilege provides complete protection for certain communications. For example, it protects a witness who gives evidence in court. Qualified privilege may apply where there is a legal, social, or moral duty to communicate information to someone who has a corresponding interest in receiving it. For example, it may protect a former employer who provides a reference to a prospective employer. The availability of the privilege defence depends on the circumstances, including the purpose of the communication and the relationship between the parties.
What to do when you spot a potential problem
So, what should an editor do when they encounter a statement that looks like it might be defamatory? Here are some practical tips:
- Ask whether the statement could harm someone’s reputation.
- Determine whether it’s presented as fact or opinion.
- Consider whether the source supports the wording.
- Preserve relevant context and qualifications.
- Check that headings and captions accurately reflect the content.
- Flag any concerns to the client, author, or publisher.
As an editor, you’re not expected to be an expert in defamation law. You should, however, be able to recognize potential issues and raise them with the appropriate person, and avoid making them worse.
Final thoughts on defamation law
Editorial decisions are not neutral; they can shape the content and affect the meaning of published matter. As such, they carry consequences and create legal risk. Changes to wording, attribution, context, and emphasis can alter how the content is understood by readers and whether it could be defamatory.
The goal isn’t to become paranoid about every potentially problematic statement, but to understand the fundamentals of defamation law, including how defamation can arise and what defences are available. This can help you spot potential issues and respond appropriately. A little legal awareness can go a long way toward keeping the editing process smooth and straightforward.
Andi Benjamin, MA, JD, is a legal editor and writer based in Toronto. She is the owner of AB Edits.
This article was copy edited by Nicole Plotnikov, a Professional Writing student currently attending York University.
- Fair comment is the common law defense that guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff. ↩︎
