Canadian users, on average, spent 40 minutes daily on Facebook. 87% of Facebook users were aged 18-29 and 77% of Facebook users were young females.
There is no doubt that social media platforms have played an increasing role as the communication methods of choice for many, especially younger individuals in Canada. As more and more individuals consume their daily lives with communications through social media, it is perhaps unsurprising that some of the more interesting developments in the law of defamation have emerged from this space.
Defamation law, mostly conceived in an old-media world, historically balanced one person's right to freedom of speech with another's to not have his or her reputation unfairly attacked. The emergence of social media has made it more difficult to navigate the application of these long-standing principles. Unlike the traditional letter to the editor, comments on social media can be posted instantly, often in the heat of emotion, and many people who post comments do so under the mistaken belief that they will remain anonymous. Social media has the ability to create a false sense of intimacy, as users may mistakenly believe they are only speaking to a small, well-known group of individuals.
Defamation in the Conventional Sense
Libel refers to written statements and slander refers to oral statements. |
Libel and slander, known broadly as the tort of defamation, are untrue statements made by an individual that are harmful to someone else's reputation. These statements must be shared to a third party and not just to the individual targeted by the statement. The statements can be about a person, business, organization, group, nation or product that tends to hurt the person's (or business's) reputation. Libel refers to written statements and slander refers to oral statements. Cyber-libel is a term used when someone has posted or e-mailed a statement that is untrue and damaging relating to another individual on the Internet, including in message boards, bulletin boards, blogs, chat rooms, personal websites, social media, social networking sites, or other published articles.
Defamation is, for the most part, a strict liability tort; defendants will be liable whether they acted intentionally or negligently in making and publishing a defamatory statement to a third person.3 In order to recover in an action for defamation, the plaintiff must show that the words about which the plaintiff complained of:
- Are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
- In fact refer to the plaintiff; and,
- Were published to a third person, in the sense that they were communicated to at least one person other than the plaintiff.4
It is a question of law whether the words are capable of a defamatory meaning. |
The plaintiff must prove the words complained about are defamatory and were spoken or written by the defendant. It is a question of law whether the words are capable of a defamatory meaning. Whether the words were understood as defamatory is a question of fact.5 In determining the meaning of a publication, the court may take into consideration all of the circumstances of the case, including any reasonable implications the words may bear, the context in which the words were used, the audience to whom they were published and the manner in which they were presented.6
Defences Available to a Claim for Defamation
Briefly, a defendant has defences available should a plaintiff allege issues of defamation based on the defendant's statements made on social media. The defences available are (1) truth or justification; (2) absolute privilege; (3) qualified privilege; (4) fair comment and (5) responsible communication on matters of public interest.
Communications made with the express or implied consent of a person are also protected from a claim of defamation by that person as well. Consent is a narrow defence to defamation and one not often seen, where the consent must be clearly established. Consent must be given or be able to be inferred with respect to each publication of the defamatory material.7
Truth or Justification
A statement may hurt your reputation, but if it is true, anyone who said it, has a valid defence if sued for defamation. The Defendant has to prove that on the balance of probability, their statement was true.
Absolute Privilege
People must be able to speak freely in our justice and political systems without worrying that someone may sue them. |
People must be able to speak freely in our justice and political systems without worrying that someone may sue them. The three main examples of this defence are statements made: (1) in Parliament; (2) as evidence at a trial or in court documents, in a criminal or civil case; and (3) to a quasi-judicial body, such as a regulatory professional association like the Law Society, that was investigating a complaint.
The privilege does not apply if a person repeats their statement outside of Parliament or the court or regulatory process. It also does not apply if a person tells someone they made a discipline complaint. The defence also allows the fair and accurate reporting of court proceedings in the media, such as newspaper reports of a trial.
Qualified Privilege
This defence is where remarks that may otherwise be defamatory were conveyed to a third party non-maliciously and for an honest and well-motivated reason. For example, say a former employee gives its employer's name to another employer as a reference and that prospective employer calls the current employer for a reference. The current employer tells the prospective employer that the employee caused problems. As long as the current employer acted in good faith and without malice, and the employer's statement was not made to more people than necessary, then the defence of qualified privilege may protect the employer if the former employee sues them for defamation.
Fair Comment
It can be argued that individuals are free to comment - even harshly - about issues of public interest, as long as an individual is clear that their comments are: (1) statements of opinion, not fact; (2) based on facts that can be proven and (3) not made maliciously.
As an example, a blogger may write that a Member of Parliament says that they support equality and equity rights, but they opposed same-sex marriage. The blogger writes that the Member of Parliament is hypocritical. If the Member of Parliament sues the blogger for defamation, the blogger may have the defence of fair comment available.
Responsible Communication on Matters of Public Interest
...journalists should be able to report statements and allegations - even if not true - if there's a public interest in distributing the information... |
In the 2009 Supreme Court of Canada decision, Grant v. Torstar Corp.,8 the SCC established a new defence to libel. The court provided that journalists should be able to report statements and allegations - even if not true - if there was a public interest in distributing the information to a wide audience. This defence, which looked at the whole context of a situation, could apply if: (1) the news was urgent, serious and of public importance and (2) the journalist used reliable sources, and tried to get and report the other side of the story.9 Of importance, the court defined journalist to include bloggers and anyone else publishing material of public interest in any medium.10
Recent Damage Awards in the Social Media Context
With respect to a plaintiff's entitlement to general damages arising out of a defamatory statement, the Canadian "trilogy" limit on non-pecuniary damages in personal injury cases does not apply in a defamation action.11 Nonetheless, the basic principle is that libel awards, like damage awards for other wrongs, should be based upon a rational attempt to measure in money terms the loss and injury the plaintiff has suffered.12 Unless this basic principle is kept clearly in mind in libel cases, there is a substantial risk of escalating and excessive awards.13
Special, aggravated and punitive damage awards may be ordered in certain circumstances. A defendant may be able to mitigate some of their exposure to a claim for the latter two by apologizing for their actions or engaging in positive actions to remedy the situation following the defamatory action.
With respect to damage awards in the social media context for defamatory conduct, various courts have weighed in.
In a 2010 decision, the Ontario Superior Court awarded damages to the plaintiff as a result of defamatory remarks made on Facebook. In Windsor-Essex Catholic District School Board v. Lentini,14 a disgruntled parent upset over changes to a school's hockey program started a Facebook group to allow other parents and students to comment on the school principal's decision to effect the changes. Ultimately, two such pages were created on Facebook. A number of inflammatory and defamatory comments were made by the defendant on both of the pages in question, the most egregious of which were postings where the defendant accused the school principal of pedophilia and engaging in sexual relationships with other teachers. The postings also included several pictures of him which had been digitally altered, to depict him as a "Hitler-esque" dictator and racist. While the amount of damages awarded is uncertain in this action, the court nonetheless, found that the plaintiff was entitled to same based on the defamatory comments and depictions made by the defendant.
...one of the defendants used Facebook to vent her frustrations concerning one of the plaintiffs... |
In 2012, the Superior Court of Quebec rendered the decision of 9080-5128 Quebec Inc. v. Morin-Ogilvy.15 In this case, one of the defendants used Facebook to vent her frustrations concerning one of the plaintiffs, a former friend. Following the deterioration of relation between the parties, including a disagreement over the repair of the defendant's vehicle at an automobile repair shop owned by the plaintiff, the defendant published comments on her Facebook Wall and sent messages privately through Facebook regarding the plaintiff, her daughter and her conduct surrounding the vehicle repairs.
The Court found that the message was insulting, injurious and defamatory, and went well beyond the summary of an unsatisfactory situation. Despite having many Facebook friends, the Court noted that the effect of the defendant's comments was limited in scope since only those who knew the affiliation between the defendant, the plaintiff and her daughter, who were aware that the plaintiff owned that auto repair shop and understood French (the comments were written in French) would understand the meaning of the comments. Another mitigating factor in awarding damages was that the comments were only published for two days and subsequently deleted. The Court awarded the plaintiffs nominal awards for general and special damages totaling $10,000 combined.16
In the 2015 Ontario Superior Court of Justice decision, Hardev Kumar v. Vinod Khurana,17 Justice Faieta applied the principles of defamation, with special sensitivity to the realities of Internet communication. In September 2013, the defendant, Mr. Khurana, posted statements on the plaintiff's Facebook page that suggested that the plaintiff was an impecunious extortionist who needed to get money from his late father's estate. In April 2014, the defendant sent two private messages to the plaintiff's daughter, where he expanded on the claims he made in September 2013. The plaintiff explained that the defendant's allegations caused him significant mental distress. As a result, he suffered a loss of self-esteem and felt that his standing in the community was diminished. He sought psychological treatment for these issues.
Of interest, Justice Faieta made several remarks about the unique harm that can come from misuse of the Internet. For instance, Justice Faieta cited the case of Barrick Gold Corporation v. Lopehandia et al. (2004):18
Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed.
...Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extend of publication is, therefore, a particularly significant consideration in assessing damages in Internet defamation cases.
Justice Faieta awarded $15,000 in general damages and $15,000 in aggravated damages due to the anguish the plaintiff suffered.19 Of note, the defendant, Khurana did not defend this action, so the outcome may have been different had a proper defence been advanced from the outset.
The defendant deleted the postings after approximately 27 hours, but the deletion did not affect copies that had previously been shared. |
In 2016, the British Columbia Supreme Court released its decision of Pritchard v. Van Nes.20 The above case involved a dispute between neighbours that resulted in the defendant making a number of completely false and unjustified Facebook postings (including allegations of pedophilia) about the plaintiff high school teacher. The defendant's Facebook friends made additional false and unjustified postings about the plaintiff on the defendant's Facebook page. The defendant deleted the postings after approximately 27 hours, but the deletion did not affect copies that had previously been shared.21
One of the defendant's Facebook friends forwarded copies of the postings to the principal of the school where the plaintiff taught. The plaintiff sued the defendant and default judgment was obtained. At the damages assessment hearing, the defendant characterized her Facebook postings as a form of "venting".22
The court held the following: (1) that the defendant was liable for her own defamatory statements about the plaintiff; (2) that the defendant was liable for the repetitions and republications, through both Facebook posts and by e-mail, of the defendant's defamatory statements because an implied authorization for republication was inherent in the nature and probable result of the defendant posting her defamatory statements on Facebook, and (3) that the defendant was liable for the defamatory statements about the plaintiff posted as comments to the defendant's Facebook page by her Facebook "friends", because the defendant knew of the defamatory comments and did not remove them within a reasonable time.23
The court reasoned that the defendant had a positive obligation to actively monitor and control comments posted to her Facebook page because the inflammatory content of the defendant's own postings created a reasonable expectation of further defamatory postings by the defendant's friends as part of the social media conversation.24 The court explained that the potential for reputations to be ruined in an instant through the use of internet-based social media platforms ought to cause the common law to extend protection against harm in appropriate cases.25
The court awarded the plaintiff $50,000 in general damages and $15,000 in punitive damages arising from the plaintiff's defamation claim.26 Of note and as alluded to above, the defendant did not defend the action against her and the court's determination of the plaintiff's entitlement to damages may have differed had the claim been defended from the outset.
Deleterious effects of a post going "Viral"
It is important to highlight the possible catastrophic effects a defamatory statement may have on an individual should a social media post go "viral" and reach a much larger audience than it was intended to. It is quite evident from Pritchard above, that a court will assess the impact of the audience in which the defamatory statement reaches and the time it is available to be viewed. Given the potential size of the viewing audience for any social media post given the Internet's huge worldwide audience, the effects of a statement made on social media could reach millions, if not billions, of people instantly.
Insurers should be aware of the potentially larger exposure to liability should a defamatory statement be made on a social media platform (and become viral)... |
Insurers should be aware of the potentially larger exposure to liability should a defamatory statement be made on a social media platform, reaches a worldwide audience (or a larger audience than anticipated) and is solidified in hardcopy for distribution. It is conceivable to assume that an award for damages for a statement being spread to millions or billions of viewers would increase a defendant's exposure to a claim for damages as compared to an instance where the statement was contained to a small audience. An even greater exposure to an award for damages could result should a high-profile plaintiff, such as a celebrity or social/political figure, be the source of the defamatory remark which has deleterious effects on their personal wellbeing and financial capacity.
Pritchard makes it abundantly clear that the courts are becoming more comfortable with and adapting to new realities of social media and defamation, and holding those who make defamatory comments accountable for their comments and the comments of others in appropriate circumstances. An important takeaway from Pritchard is that a social media user may not only be liable for the posts or comments they create. Liability could attach to a user as a result of the user's friends and/or followers sharing the defamatory comments by way of their own pages or social media profiles.
Recent Defamation Decisions Impacting Social Media Users
Outlined below are recent decisions which have a direct impact on defamation and social media users. While some of the below cases may not have resulted in an award of damages to the plaintiff, their principles should be highlighted as they will ultimately play a role in further defining the parameters of defamation and social media use.
Hyperlinking to Defamatory Content
The 2011 Supreme Court of Canada decision of Crookes v. Newton27 dealt with the issue of allegations of online defamation brought by businessman Wayne Cookes, which ultimately focused on the issue of whether defamatory words were "published" and whether a hyperlink to defamatory content, constituted "publishing" to attract liability. In Cookes, the defendant published an article entitled "Free Speech in Canada" on a website which he owned and operated. The article contained hyperlinks to other websites, two of which contained allegedly defamatory material about the plaintiff. The plaintiff sued in defamation claiming that by including the hyperlinks in his article, the Defendant was publishing the allegedly defamatory material and was, therefore, liable for it.
At trial, the Supreme Court of British Columbia found for the defendant. The trial judge decided that hyperlinks were analogous to footnotes and since they only referred to material rather than repeating it, there was no publication. The Court of Appeal upheld the decision. The plaintiff appealed to the Supreme Court of Canada. Justice Abella, writing for the court dismissed the appeal and held that a hyperlink by itself should never be seen as publication of the material to which it refers and that only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content should the hyperlinker be considered to have published that content.
...merely "re-posting" a hyperlinked article or comment on a user's own social media profile may constitute a republication of the defamatory comment... |
Given the above, the Supreme Court has held that a hyperlinker will not face exposure to liability unless they present content that actually repeats the defamatory content from the hyperlinked material. While the above may apply to a situation where an individual is merely copying a hyperlink (i.e. reposting an article, etc. on their Facebook Wall or Twitter feed), what may happen in a situation where defamatory content is linked in a post, and then that post was "liked" on Facebook by a defendant? Canadian courts seem to be moving in a direction to recognize the viral nature of a social media post and it may be found that merely "re-posting" a hyperlinked article or comment on a user's own social media profile may constitute a republication of the defamatory comment. A post going "viral" will only complicate this further as well.
Employers Responsibility to Protect Employees on Social Media
The 2016 decision of Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance)28 involved a union grievance regarding the Toronto Transit Commission's ("TTC") use of a Twitter account to receive customer service questions. Some of the customer tweets were complimentary while other tweets were critical of the TTC and its services, and a small but significant number of tweets included, vulgar, offensive, abusive, racist, homophobic, sexist and threatening comments about TTC's unionized employees, and included personal information identifying TTC employees.29
The union contented that the office tweets constituted workplace harassment, and argued that TTC's responses to the tweets were insufficient or inappropriate. The union sought an order requiring the TTC to shut down the Twitter account and other remedies. The arbitrator held that the Twitter account was part of the workplace and that the TTC had failed to take all reasonable and practical measures to protect the employees from harassment by members of the community in breach of the Human Rights Code, the collective agreement and the TTC's Workplace Harassment Policy.30 The arbitrator refused to order the TTC to stop using Twitter, but provided detailed directions and recommendations for the TTC's use of Twitter to protect its employees against harassment as a result of offensive tweets.31
While the decision did not lead to a finding of civil liability on a third party, had the arbitrator not provided direction to the TTC to monitor its account, the TTC and various third parties could have faced exposure to a claim for defamation which would have arisen out of the blatantly defamatory comments (against the TTC and its employees) on the TTC's Twitter account going forward. Companies should adopt and adhere to policies and guidelines while operating social media profiles in the business landscape. This is especially true should the business have a "public outreach" model where they seek customer service feedback on their operations and employees customer service.
Defamatory "GoFundMe" Campaign
The statements by words and innuendo falsely described the plaintiff as a pedophile and sexual predator. |
In another 2016 decision of the British Columbia Supreme Court, Zall v. Zall32 Justice Duncan awarded the plaintiff (in another undefended action) damages totaling $135,000.33 Zall involved a dispute between a plaintiff father and a defendant daughter over the defendant's defamatory statements published on her GoFundMe fundraising website. The statements by words and innuendo falsely described the plaintiff as a pedophile and sexual predator. The baseless allegations were read by the plaintiff's acquaintances, turned up in a background check by a business associate and resulted in a demonstrable loss of business for the plaintiff. The plaintiff sued and obtained default judgment against the defendant. Of importance, the court found that the nature and reach of the GoFundMe website compounded the damage done more than a personal blog or website.34
Of interest, the court also granted an injunction against the defendant, which also enlisted the assistance of third parties such as internet service providers and individuals who had published, posted or distributed or had otherwise repeated defamatory comments by the defendant about the plaintiff to remove any defamatory comments about the plaintiff from the Internet and any other form of publication or distribution. This included any website, social media site, blog, Usenet news groups, chat site, email or any other electronic means.
In Zall, the court expressly ordered the removal of all defamatory related posts and enlisted the assistance of not only the defendant but any third party, including friends, family and internet service providers. The court's request demonstrates the ubiquitous nature of social media posts and the efforts required to curtail the public's exposure to a defamatory statement. It also demonstrates the reach that internet "crowdsourcing" websites may have, which liken them more closely to a social media profile than a website/webpage. Their reach is far greater and intertwined in a community's electronic footprint.
Disclosure of Facebook Account Information
The 2016 Nova Scotia Supreme Court decision of Olsen v. Facebook Inc.35 involved a dispute over allegedly defamatory anonymous Facebook comments about the applicants' activities as chief administrative officer and councilor of an Ontario municipality. The applicants sought on order requiring Facebook to disclose information to assist in identifying the three anonymous authors of the comments. Facebook did not respond to the application or participate in the proceeding. The court issued an interim preservation order requiring Facebook to secure and preserve the identifying information, and adjourned the hearing so that the applicants could give notice of the application to the comment makers by way of messages to their Facebook accounts.
At the continued hearing, no one appeared on behalf of the comment makers. The court reasoned that while Internet anonymity could not be used to avoid liability for defamatory comments, there may be circumstances where the protection of anonymity allowed critical comments on matters of public interest to expose misconduct that might not otherwise come to light. The court concluded that the nature and number of comments by two of the Facebook account holders overrode any reasonable expectation that they should be entitled to remain anonymous and ordered Facebook to disclose information about the individuals.36 The court held that the individual who posted only one critical comment was entitled to remain anonymous. The court ordered that the information disclosed by Facebook was to be used only for the potential defamation action.
... social media users must be aware that their posts will not be held behind a cloak of anonymity should the posts contain defamatory content. |
As the above clearly demonstrates, social media users must be aware that their posts will not be held behind a cloak of anonymity should the posts contain defamatory content. It is important for users alike to understand that there is a delicate line between a user's rights under the Charter of Rights and Freedoms to provide for freedom of speech in contrast with comments that constitute defamatory remarks. As a consequence of defamatory comments, the anonymous commenter may be subject to costly, stressful and time-consuming litigation in connection with the injured targets of those defamatory comments. The above case illustrates that any expectation of anonymity may be trumped by the nature and number of comments authored by the anonymous commenter in a claimant's pursuit of damages for defamatory content.37
Advice for the Social Media User and Insurers
Given the above, it is apparent that precautions should be taken by social media users to ensure they avoid attracting liability for statements posted, commented on and shared on the various social media platforms available. In an ever changing world where technology has developed superior communication tools, the old-age legal principles of defamation have remained true and have become inherently more complicated and magnified in the social media age. A simple Facebook wall post pitted in emotion "venting" about a hair in your food may find a social media user cuff to cuff with the aggrieved restaurant owner who claims that the post had deleterious effects on their business.
Insurers should advise personal and corporate users of Facebook and other social media outlets of the following suggestions in a hope to mitigate a claim for defamation arising out of statements made on social media:
Social Media Users
- Treat everything that is said on the Internet or in e-mail as if the user was publishing it on the cover of a newspaper with a widespread readership or broadcasting it on the news;
- Be careful of defamatory comments from Facebook friends or website readers as a user can face liability either from allowing them to remain online, especially when endorsing or agreeing with them by sharing, commenting, liking the post, etc.;
- If the user's Internet writing style toes the line with defamatory comments, advise the user to tighten their privacy settings thus limiting the numbers and identities of those who would be capable of reading and sharing the post;
- If in doubt, advise the user to take down the offending comment or reply immediately. The longer it remains viewable, and the more widespread it is read and copied, the greater potential for damages to arise; and,
- Ensure that users review their Facebook pages or social media postings, profiles, blogs, websites, etc. for past defamatory comments by either the user or others. Continue to audit that profile to ensure that comments remain free of defamatory language.
Businesses
- Centralize social media channels: Consolidate all social media accounts into a single social media management system. This also allows for better tracking of the results of social media campaigns.
- Control access through limited permissions: Give junior employees limited permission to draft messages, which can then be fed into an approval queue for senior management to sign off on before publishing;
- Get a handle on passwords: Equally critical is having a master switch for turning on and off employees' access to different social media accounts. Access can be turned on or off by a central administrator, who holds the real "keys" to the company's social profiles; and,
- Attitude Shift: Employees are in desperate need of social media training: on everything from the nuts and bolts of Tweeting and posting to how to leverage social media for business strategy. Everyone needs to buy into this philosophy to properly protect a company's social media profiles from abuse and issues relating to potential defamatory instances in the workplace.
It is important for social media users and insurers alike to understand the importance of the "sober second thought" principle prior to posting statements on social media. Given the speed in which a statement can go "viral" and reach a worldwide audience, it becomes ever more important to take a deep breath before pressing the "send" button on each social media post, like, comment or share.
Now that is something we can all "like" going forward.
1 By the Numbers: Social media in Canada on UFCW
2 Ibid.
3 Dinyer-Fraser v. Laurentian Bank, 2005 BCSC 255.
4 Grant v. Torstar Corp., 2009 SCC 61, at para. 28.
5 Lions Gate Marketing Co. v. Used Car Dealers Assn. of Canada, 2005 BCCA 274 at para. 11.
6 Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 62.
7 Syms v. Warren (1976), 71 D.L.R. (3d) 558 (Man. Q.B.).
8 2009 SCC 61
9 Ibid.
10 Ibid at para. 62.
11 Hill v. Church of Scientology of Toronto (1995), [1995] 2 S.C.R. 1130 (S.C.C.).
12 Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3d) 161 (Ont. C.A.); leave to appeal refused (2001), 2001 CarswellOnt 5614 (S.C.C.).
13 Ibid.
14 [2010] O.J. No. 5103 (S.C.J.).
15 2012 QCCS 1464.
16 Of note, as this decision was decided in Quebec, the civil code applied and it is uncertain as to how the above would be applied in civil law jurisdictions.
17 2015 ONSC 7858.
18 (2004), 71 O.R. (3d) 416 (C.A.)
19 Supra at note 11.
20 2016 BCSC 686.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid.
27 2011 SCC 47.
28 [2016] O.L.A.A. No. 267 (Q).
29 Ibid.
30 Ibid.
31 Ibid.
32 2016 BCSC 1730.
33 $75,000 for general damages; $50,000 for aggravated damages; $10,000 in costs.
34 Supra note 25 at para. 83.
35 2016 NSSC 155.
36 Ibid.
37 Ibid.
