Defamation, filming in public and recording

Documentaries, journalism, true-crime podcasts, docudramas and even fiction can harm real people's reputations, and the act of gathering material can break laws on trespass, recording and voyeurism. This lesson covers defamation, which protects reputation; the rules on filming and photographing in public and on private property; and the rules on recording conversations and using hidden cameras. These are areas where good editorial practice and good legal practice overlap: accuracy, fairness, documentation and care.

This lesson is not a substitute for a pre-publication legal review. Films and podcasts that make serious allegations about identifiable people should be reviewed by a media lawyer before release, and most broadcasters and insurers require it.

What defamation is

Defamation is the publication of a statement that tends to lower a person's reputation in the eyes of reasonable members of the community. Written or recorded statements are traditionally called libel and spoken ones slander; films, broadcasts and online content are generally treated like libel. The statement can be made by words, images, captions, music cues, editing or the juxtaposition of shots. A shot of an innocent shopkeeper placed in a sequence about fraud can defame him even if no one says his name.

In Canada, a plaintiff must prove three things: that the words or images would tend to lower their reputation in the eyes of a reasonable person, that they referred to the plaintiff, and that they were published to at least one person other than the plaintiff (Grant v Torstar, 2009). Once those are proved, falsity and damage are presumed, and the burden shifts to the defendant to prove a defence. This makes Canadian law more favourable to plaintiffs than American law.

Corporations can sue for defamation, as can individuals. Limitation periods are short in some provinces and may require notice before suing; for example, Ontario's Libel and Slander Act requires notice within six weeks of a broadcast or newspaper publication coming to the plaintiff's knowledge, and an action within a short period afterwards. Several provinces are reviewing their defamation statutes, and Ontario consulted on reform following a 2022 Law Commission of Ontario report, so check current rules.

Defences

Justification (truth). A defendant who proves that the defamatory meaning of the statement is substantially true has a complete defence. The defendant must prove the sting of the statement, not just technical accuracy of each word.

Fair comment. Comment on a matter of public interest, based on facts that are true and stated or known, that a person could honestly hold, is protected even if it is harsh or exaggerated, unless the defendant was motivated by malice (WIC Radio v Simpson, 2008).

Responsible communication on matters of public interest. In Grant v Torstar, the Supreme Court created a defence for publishers who report on matters of public interest responsibly, even if a statement turns out to be untrue. Courts consider the seriousness of the allegation, the urgency and public importance of the matter, the status and reliability of sources, whether the plaintiff's side was sought and accurately reported, whether including the statement was justifiable and any other relevant circumstances.

Privilege and anti-SLAPP laws. Absolute and qualified privilege protect some statements, such as fair and accurate reports of court proceedings. Ontario's anti-SLAPP provision, section 137.1 of the Courts of Justice Act, lets a defendant ask the court to dismiss a claim early if it arises from expression on a matter of public interest, unless the plaintiff shows the claim has substantial merit, no valid defence, and harm that outweighs the public interest in protecting the expression (1704604 Ontario v Pointes Protection, 2020). British Columbia and Quebec have similar laws.

Defamation risks in documentary and drama

Most defamation claims against filmmakers come from a predictable set of situations: allegations of crime or misconduct, unflattering portrayals of identifiable private people, editing that changes meaning, and fictional characters who resemble real people.

• Allegations: verify every factual claim with reliable, documented sources, give the subject a fair chance to respond, and report the response accurately.
• Editing and juxtaposition: check that the order of shots, the music and the narration do not imply things that are not true, especially about bystanders and archive subjects.
• Captions and titles: a neutral image becomes defamatory with the wrong caption. Review all on-screen text and promotional material, including trailers and thumbnails.
• Docudrama and dramatization: invented dialogue and composite characters can imply facts. Use disclaimers, but do not rely on them alone; a disclaimer does not cure a portrayal that a viewer would take as fact.
• Fiction: a fictional character who closely matches a real person in name, job and location can be read as referring to that person. Script clearance (Lesson 6) catches many of these.

Filming and photographing in public

Filming in public places is generally lawful in both countries, subject to the rights discussed in Lesson 7 and to rules on permits, safety and public order. Practical limits come from permits, property boundaries and the behaviour of the crew rather than from a general ban.

• Permits: many cities require film permits for crews that use equipment, block sidewalks or roads, or film in parks; casual photography and small documentary crews often do not need them, but rules vary.
• Property: sidewalks and streets are public, but malls, transit systems, stadiums, campuses and private lots are private or controlled property, where the owner can set conditions or refuse permission.
• Police and public officials: recording police officers performing their duties in public is generally lawful, but crews must not obstruct them.
• Drones: flying a drone for filming is regulated by aviation authorities, with rules on licensing, altitude, distance from people and restricted airspace; PHOT-350 and ROB-450 cover those rules.

In Canada, the Charter protects freedom of expression, including newsgathering, and courts have recognized that the public has an interest in recording police in public, although there is no specific statutory right. Trespass is governed by provincial law; in Ontario, the Trespass to Property Act allows occupiers to prohibit entry and to require people to leave.

Recording conversations

Recording laws differ sharply between the two countries and among American states, and the consequences of breaking them can be criminal.

In Canada, Part VI of the Criminal Code makes it an offence to wilfully intercept a private communication, but it is not an offence if one of the parties to the communication consents. This is called one-party consent: a person who is part of a conversation can generally record it without telling the others. Recording conversations you are not part of, such as by leaving a recorder in a room, can be a serious crime. Quebec's Civil Code separately treats intercepting or using private communications as an invasion of privacy, and broadcasters' codes and journalistic standards also limit using secretly recorded material.

Hidden cameras and voyeurism

Hidden cameras can expose wrongdoing, but they also carry the highest legal and ethical risk. Voyeurism laws prohibit secretly observing or recording people in places where they reasonably expect privacy, such as bathrooms, changing rooms and bedrooms, or recording intimate images, regardless of purpose. Using hidden cameras in other settings may still raise privacy, trespass, recording and broadcasting code issues.

The Criminal Code's voyeurism offence prohibits surreptitiously observing or recording a person in circumstances that give rise to a reasonable expectation of privacy, including where the person is in a state of undress or engaged in sexual activity, or where the recording is done for a sexual purpose. Distributing intimate images without consent is a separate offence, and Bill C-16, which received royal assent in June 2026, extended criminal law to sexual deepfakes, as PHOT-420 explains.

Before using a hidden camera or covert recording, a responsible production asks whether there is a strong public interest that cannot be served any other way, whether the method is lawful where it will be used, whether the broadcaster's standards allow it, and how identifiable bystanders will be protected. Legal review is essential.

Fact-checking and legal review

Documentary teams that make allegations about real people build a verification file as they go. It records each factual claim in the script, the source supporting it, how the source was checked and any response from the people concerned. When the lawyer reviews the fine cut, the file lets the team answer questions quickly, and if a claim arrives later, it shows the care the producers took, which matters for defences such as responsible communication in Canada and for proving the absence of fault in the United States.

• Primary documents first: court records, inspection reports, official statistics and contemporaneous records are stronger than recollections.
• Multiple independent sources for serious allegations, with notes on each source's basis of knowledge and possible motives.
• Right of reply: a written request for comment with enough detail and time to respond, and a fair summary of the response in the film.
• Script and caption review: check narration, lower thirds, titles, thumbnails and trailers, not only interviews.
• Archive and B-roll review: confirm that people shown in illustrative footage are not wrongly linked to the story.

Canadian broadcasters and the Canadian Broadcast Standards Council apply codes of ethics on accuracy, fairness and privacy, and complaints can lead to rulings that broadcasters must air. Producers delivering to Canadian broadcasters should read the applicable codes along with the law.

Dramatized scenes and reconstructions

Many documentaries use reconstructions, actors or re-enactments to show events that were not filmed. These scenes carry particular risks, because viewers may take invented details as fact. Label reconstructions clearly on screen, base dialogue on documented sources wherever possible, avoid inventing conduct that would harm a real person's reputation, and keep the research that supports each scene. When a scene compresses time or combines characters, say so in the film or its notes. The same care applies to podcasts that use voice actors to read real documents or messages, where a listener may not realize the voice is not the real person's.