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$30,000 Awarded for Defamatory Statements Made on Facebook

February 2016

As stated in a previous post Jane Doe 464533 v. X, courts must always adapt the common law to meet the needs of the digital age. Justice Faieta's decision in Hardev Kumar v. Vinod Khurana, 2015 ONSC 7858 is an example of this trend. Unlike the case that I profiled previously, where the court recognized a new tort to compensate the victim of so-called "revenge porn", the court in Kumar v. Khurana simply applied an age-old tort, 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.

...he suffered a loss of self-esteem and felt that his standing in the community was diminished.

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.

Justice Faieta cited the case of Grant v. Torstar Corp., 2009 SCC 61, for the three part test for defamation:

  1. The impugned words must be defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
  2. The words in fact referred to the plaintiff; and
  3. The words were published, meaning that they were communicated to at least one person other than the plaintiff.

The part of this judgment that I find most interesting is Justice Faieta's focus on the mode of communication, the internet. Justice Faieta makes 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), 71 O.R. (3d) 416 (C.A.) for the following passage:

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 extent 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.

I note that Mr. Khurana did not defend this action.


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