SOCIAL MEDIA ATTACKS - PROCEED WITH CAUTION - THE COURT IS WATCHING

Increasingly maligned victims on social media resort to the Court for redress. The Court is becoming more intolerant of defamatory conduct online, to the extent that significant damages may be ordered against the traducing party. No longer does the Internet shield against vilifying another online.    

There have been several notable cases.

For example, fairly recently a B.C. Judge awarded over $65,000 in damages against a woman for publishing untrue and unsubstantiated statements and accusations on Facebook about her neighbor, suggesting him to be a pedophile, including that he placed mirrors and cameras in his backyard to spy on her children.

It appears the case initially erupted as a neighbor dispute regarding a fish pond and backyard waterfall. The municipality was eventually involved, too, but could not effectively assist the neighbor. 

The Court held that her “viral” social media posts were “venting” and “completely false and unjustified” and negatively impacted her neighbor and his career as a teacher. The woman removed her Facebook comments, after the neighbor demanded she do so, within about twenty-four hours, but the damage had already been done. For example, someone in the community had contacted the Principal of the neighbour’s school expressing concerns about him, after reading the Facebook statements. 

Amongst other criticism of her, the Court said: “The seriousness of Ms. Van Nes’s defamatory Facebook post, her replies, and the comments of her ‘friends’ cannot be overstated,” and “An accusation of pedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity.”

He now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point”, the Court concluded.

The vilifying party was ordered to pay to her neighbor $50,000 in general damages, $15,000 in punitive damages and $2,500 for nuisance. She was also ordered to pay a hefty part of his legal expenses. Lastly, and for good measure, presumably, she was ordered to turn off the waterfall in her backyard pond every night between 10 p.m. and 7 a.m.

More recently, Ontario’s Court of Appeal awarded $700,000 in an online defamation case involving a targeted and malicious online campaign involving business partners. The Court, noting the immediacy, permanency and “pernicious effects” of Internet defamation, held the business partner’s online posts were “unrelenting, insidious and reprehensible” over a “lengthy period”. Despite that the targeted business partner testified that he was unaware of any specific injury to his reputation in the community, significant damages were ordered. The Court’s decision highlights that a dollar amount cannot readily be ascribed to a person’s reputation.

Furthermore, the damages were awarded against another person, who was held to have participated in the business partner’s general plan and facilitated this behavior, even though he was not directly involved. Accordingly, a person need not directly participate in the online defamation, but be exposed to joint and several liability for that tortious conduct.

Misguided users of social media should certainly not assume they are protected from liability if they defame another, just as if they had done so by any other means. 

The cases:

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

Rutman v. Rabinowitz, 2018 ONCA 80 (CanLII)

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SO, YOU HAVE BEEN DEFAMED - THE BASICS AND WHAT TO CONSIDER:

Defamation has two forms: libel (written words) and slander (spoken words).

For a defamation case, as person must prove:

1.            the words at issue were defamatory (meaning they would negatively impact the person’s reputation in the eyes of a reasonable person);

2.            the words, in fact, referred to the person complaining about those words; and

3.            the words were published (meaning they were written or said to a person other than the person who is complaining about the words).

Generally, the legal way of understanding 1 above is:

“Expressions which tend to lower the reputation of a person in the estimation of right thinking members of society generally or which expose a person to hatred, contempt or ridicule are defamatory.”

If these three elements are proved, damages are generally presumed and the onus shifts to other person to prove a defence to avoid liability.

There are many defences raised by defendants in defamation cases. For example, if the defendant can prove the words were “true”, it usually means liability is avoided. There are also special occasions that offer protection to those who defame others, such as in Court documents (allegations, etc.). There are a number of other defences available, too, some of which are quite legally complicated.

Ontario also has the Libel and Slander Act, which imposes statutory law to defamation. For example, special notice requirements apply if the defamation is published in the media, for example. In addition, defamation in the context of a person’s profession can also be actionable even if specific (monetary) damages cannot be established.

Sometimes, defamation creates a balance between protection reputation and free speech. This often arises in the context of defamatory statements made in the media or sometimes online.

Generally, damages awards in Ontario for defamation cases are somewhat modest, particularly in cases not involved mass, publication through media.

More cases are emerging over defamatory statements made online, particularly through social media and discussion blogs and forums. Those cases tend to be challenging to deal with, including whether the host of the blog or discussion forum should also face liability.

Ontario also has adopted legislation about apologizing to others. This legislation does not protect a person from liability, but is intended to try to prevent lawsuits from happening and encourage disputing parties to resolve before a lawsuit. If offers some protection to those who do apologize, too.    

Defamation is a fairly specialized legal field. If you feel that you have been defamed, or you are accused of doing so, you should speak to a lawyer qualified and experienced with this area of law. This is a very brief outline about this area of law only, which is quite extensive and often complicated. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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MY REPUTATION IS DEFAMED ON SOCIAL MEDIA - WHAT CAN I DO? IS TWITTER RESPONSIBLE FOR MY DAMAGES?

Baglow v. Smith - a recent Ontario decision about defamation online - in this case, blogging (political) on a message board. The Court described it as “rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar.” 
 
Basically, A sued B, claiming B had defamed him on a political blogosphere message board. A also sued the host of the message board, who created the online forum for the comments exchanged between both A and B. A and B had both posted on the message board, rather aggressively. B took it too far. The Court also held the message board host/moderator liable to A for defamation damages.
 
Take Aways:   
 
1. A moderator or creator of an online message board may be held liable for defamation for posts made by a third party. Here, the host was fairly active on the message board (which likely impacted the Court's decision). However, the case does not make it clear, in my view, if it would readily apply to popular social media sites (Facebook, etc.), where there are so many users.
 
2. The case applied to direct comments made by a user on a message board. It does not establish, in my view, that the same result would apply to, for example, a hyperlink posted, or an indirect statement, such as so-called ' comment boxes' on Web sites or sharing someone else's post on social media, for example. It might be argued it should apply, but the Court does not extend its finding that far, at least not expressly.  
 
3. Blog anonymity may be an important factor - the Court indicated: “[t]he evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage.” This may mean that hosts/moderators might only be held liable in future if the identify of the blogger/poster is unknown, or could not be ascertained. If not, it is questionable if the host would be held liable.
 
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
 
Defamed online? More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca
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