While both the United States and Canada share common legal roots, there are differences in how they handle online defamation. Though both countries have defamation laws that apply to online statements, the legal standards, procedural rules, and available defenses can differ.
Defamation Law in the U.S.
Let’s begin with several key pieces of information to know when it comes to online defamation law in the United States:
First Amendment Protections
The First Amendment of the U.S. Constitution protects freedom of speech, including opinions and even some false statements. As a result, defamation laws in the U.S. tend to be more permissive than in some other jurisdictions
Public Figures and Actual Malice
If the subject of the defamation is a public figure, they generally must prove that the false statement was made with “actual malice” (knowingly false or with reckless disregard for the truth) in order to succeed in a defamation lawsuit.
Section 230 of the Communications Decency Act
Section 230 provides immunity to online service providers for content posted by users. This means that, in many cases, websites and platforms are not held liable for defamatory statements made by their users.
State Laws Vary
Defamation laws can vary significantly from state to state, with some states having anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes that provide protection against lawsuits intended to censor, intimidate, or silence critics.
To establish defamation in the U.S., a plaintiff typically needs to prove the following:
- A false statement was made
- The statement was published to a third party
- The statement caused harm to the plaintiff’s reputation
- The statement was made negligently or with actual malice (for public figures)
Defamation Law in Canada
Unlike the U.S., Canada does not have specific federal legislation addressing online defamation. However, defamation laws in Canada apply to both online and offline statements. Canadian defamation laws are primarily based on common law principles, and each province and territory has its own set of laws that govern defamation.
Here are some key pieces of information to know when it comes to Canadian defamation law and how it differs from that in the U.S.:
Protection of Reputation
While Canada values freedom of expression, it also places a significant emphasis on the protection of reputation. Defamation laws are designed to balance these two principles.
Public Figures and Private Individuals
Unlike the U.S., Canada generally does not have a distinction between public and private figures when it comes to defamation. Both can pursue defamation claims.
No Equivalent to Section 230
Canada does not have an equivalent to Section 230 of the Communications Decency Act. However, online service providers may still have some legal protections under certain circumstances.
Less Emphasis on Actual Malice
Canadian defamation laws may not require plaintiffs to prove “actual malice” as is often required for public figures in the U.S. Instead, the focus may be on whether the statements are false and harmful to reputation.
Defamation laws fall under provincial jurisdiction in Canada, so there can be variations in how these laws are applied from one province to another.
To establish defamation in Canada, a plaintiff typically needs to prove that a statement was:
- Damaging to their reputation
- Communicated to a third party
However, in Canada, there are limitation periods within which a defamation claim must be brought. These periods can vary by province and territory.
Regardless of whether you live in the U.S. or Canada, if you are dealing with a potential defamation issue, it is advisable to seek legal advice from a qualified professional in the relevant jurisdiction.