The feud between rappers Drake and Kendrick Lamar reached a fever pitch recently, with both dissing each other in songs featuring harsh accusations. This kind of beef between rap artists isn’t new, but the severity of the insults traded in this feud has galvanized fans and the attention of the broader public.

In his lyrics, Lamar claimed Drake has an 11-year-old daughter who he abandoned and calls him a “certified pedophile.” For his part, Drake called Lamar a “pipsqueak” and accused him of abusing his fiancée.

The salvos of diss tracks raise interesting questions about defamation in music lyrics. If either Drake or Lamar decided to sue the other for defamation, what would the law say?

Defamation includes both slander (verbal attacks) and libel (written attacks). Musical lyrics and audio recordings can qualify as libel. The standards for libel differ whether you are in Canada or the U.S., so should one or the other decide to sue for libel, it would make a difference where they filed the lawsuit.

Freedom of speech

Libel requires that a derogatory statement is made that clearly refers to a person and that the statement is made to a third party. In this feud, there is no doubt about who is being accused of what, and the derogatory accusations are being communicated to millions, so technically, these lyrics look like libel.

Nonetheless, there are a number of defences available. A first response would be to claim a defence based on freedom of expression in Canada or First Amendment rights to free speech in the U.S.

Free speech rights in the U.S. have a longer reach than freedom of expression laws in Canada. Several cases in the U.S. have specifically cited artistic expression as protected speech.

California passed the Decriminalizing Artistic Expression Act in 2022. Nationally, the Restoring Artistic Protection Act (the RAP Act) is currently before the U.S. Congress. It aims to protect artists from having their words used against them in court.

The Canadian Supreme Court, in R. v. Simard, also rejected using lyrics as evidence. That case involved a criminal matter, and libel is a civil matter, but Drake and Lamar have accused each other of criminal activity.

Truth defense

Truth is the first defense available in a libel case. If Lamar or Drake have evidence that what they’ve said is substantially true, it is not defamation. In “The Heart Part 6,” Drake says that Lamar should check his facts and claims that he’s actually fed Lamar false information about having a love child.

In 2005, one court in the U.S. ruled that rap lyrics were simply “rhetorical hyperbole” if they didn’t contain any verifiable true statements. Even if statements are false, if the defamed person can’t prove they suffered harm, there may be no damages.

Fair comment

The next possible defence would be fair comment, which leans into the importance of free speech. This applies to information with a strong public interest, and helps to defend news outlets when they publish something they believe to be true.

There is certainly an argument to be made that protecting young girls and all women from abuse is important to the public interests. The burden of proof lies with the defendant. The plaintiff only needs to prove the elements of libel.

A major difference between libel in the United States and Canada is that in the U.S. a public figure has to prove that the person acted with actual malice; that is, that they intended to harm the other person.

That could potentially make a libel case easier for a plaintiff to win in Canada. However, Canadian courts, like U.S. ones, will focus on whether the statements were false and whether they caused harm.

Consent defense

The most applicable defense in this case would likely be consent, which leans into the long history of rap and diss tracks. Rap battles have been compared to boxing. When you step into a boxing ring, you consent to being punched. Similarly, when you step into a rap battle, you expect, and accept, that you will be dissed.

Eminem called Muhammad Ali an inspiration. Ali was known for delivering prefight rhyming disses of his opponents, and it’s easy to see a link between Ali’s single “Round 5: Will the Real Sonny Liston Please Fall Down” and Eminem’s lyric “Will the real Slim Shady please stand up.”

Diss tracks are a great way for artists to garner attention. Drake and Lamar fans have been vocal in their opinions, and their songs have gone viral online. Both Lamar’s “Euphoria” and Drake’s “Push Ups” made the top 20 on Billboard’s Hot 100. Overall, streams of Lamar’s back catalogue are up 49%.

It’s been suggested that in “Meet the Grahams,” Lamar was intending for their exchanges to simply be an informal competition game. There is no shortage of artists in all genres taking aims at rivals or exes—just look at Taylor Swift’s latest offering.

It’s easy to see Drake and Lamar as consenting to this exchange in the tradition of diss tracks. In a high-profile jury trial, such as the Johnny Depp and Amber Heard case, it might come down to whoever the jury finds most sympathetic.

Regardless of how extreme this war of words has become, demonstrating actual harm due to the various allegations might prove difficult. However, the likelihood of this beef ever reaching the courts is low. Should Drake or Lamar decide to sue for defamation, it might be seen as admitting defeat in this artistic war of words. And so, it will likely remain up to the fans to decide who the winner of this rap beef is.

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Lisa Macklem is a PhD candidate in law at Western University.

This article is republished from The Conversation under a Creative Commons license. Read the original article.