Defamation in the Internet Age:

The Law and Social Media Sean Valentine, McCague Borlack LLP

Canadians and Social Media

Defamation in the Conventional Sense Defamation:

• Untrue statements made by an individual that are harmful to someone else’s reputation.

• Must be shared with a third party.

Two forms of Defamation:

• Slander – oral statements

• Libel – written statements

• Cyber-Libel – a “post” or statement that is untrue to another individual on the Internet

• Could include posts on message boards, bulletin boards, blogs, chat rooms, personal websites, social media, social networking sites or other published articles.

Defamation in the Conventional Sense

Defamation:

• For the most part – strict liability

• A defendant will likely be liable whether or not they acted intentionally or negligently in making and/or publishing a defamatory statement to a third person.

Defamation in the Conventional Sense

Grant v. Torstar, 2009 SCC 61

• In order to recover in action for defamation, the plaintiff must show that the words about which the plaintiff complained of:

1. Were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

2. In fact refer to the plaintiff; and,

3. Were published to a third person, in the sense that they were communicated to at least on person other than the plaintiff.

Defamation in the Conventional Sense

Defences Available to a Claim for Defamation 1. Truth or justification

2. Absolute Privilege

3. Qualified Privilege

4. Fair Comment

5. Responsible Communication on Matter of Public Interest

6. Consent

Recent Damage Awards (Social Media)

Recent Damage Awards (Social Media) General Damages • Canadian “trilogy” limit on non-pecuniary damages

in personal injury cases does not apply in defamation actions.

• Nonetheless, awards have not surpassed this limit to date.

• Damages should be assessed based upon a rational attempt to measure in money terms the loss and injury the plaintiff had suffered.

• Special, aggravated and punitive damages may be awarded in certain circumstances.

Recent Damage Awards (Social Media)

• Windsor-Essex Catholic District School Board v. Lentini (2010)

• Ontario Superior Court of Justice • Damages not available

• 9080-5128 Quebec Inc. v. Morin-Ogilvy (2012)

• Superior Court of Quebec • Damages awarded totaling $10,000 total for both

plaintiffs

Recent Damage Awards (Social Media)

• Hardev Humar v. Vinod Khurana (2015) • Ontario Superior Court of Justice

• General Damages awarded totaling $15,000; Aggravated Damages awarded totaling $15,000.

• Pritchard v. Van Nes (2016) • British Columbia Supreme Court

• General Damages awarded totaling $50,000; Punitive Damages awarded totaling $15,000.

Deleterious Effects of a Post Going “Viral”

Recent New Privacy Tort Recognized Jane Doe 464533 v. X. (2016) • Ontario Superior Court of Justice

• Defendant posted an intimate video of the Plaintiff online and showed it t members of their social circle.

• Breach of Confidence, Intentional Infliction of Mental Distress and Invasion of Privacy claims advanced by the Plaintiff.

• American tort of “Public Disclosure of Embarrassing Private Facts About the Plaintiff” as most analogous.

• General Damages awarded totaling $50,000; Aggravated Damages awarded totaling $25,000 and, Punitive Damages awarded totaling $25,000.

Recent Impactful Decisions on Social Media Users Hyperlinking to Defamatory Content • Crookes v. Newton (2011)

• Supreme Court of Canada • A hyperlink by itself should not be seen as

publication of defamatory content to which it referred

• Only when a hyperlink presents content from the hyperlinked material in a way that repeats the content should the hyperlinker be considered to have published that content.

Recent Impactful Decisions on Social Media Users Employers Responsibility to Protect Employees Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance) (2016) • Ontario Labour Arbitration Awards

• TTC used Twitter account to receive customer service questions.

• Tweets included vulgar, offensive, abusive, racist, homophobic, sexist and threatening comments about TTC’s unionized employees, including personal information identifying the TTC employees.

• Union sought an Order to shut down Twitter account. • Relief denied, but provided detailed directions and

recommendations for the TTC’s use of its Twitter account to protect its employees against harassment.

Recent Impactful Decisions on Social Media Users Defamatory “GoFundMe” Campaign Zall v. Zall (2016) • British Columbia Supreme Court

• Damages awarded totaling $135,000 • Court also granted injunction, which

enlisted assistance of third parties (individuals and internet service providers) to remove defamatory content from Internet.

Recent Impactful Decisions on Social Media Users Disclosure of Facebook Account Information Olsen v. Facebook Inc. (2016) • Nova Scotia Supreme Court

• Dispute over allegedly defamatory anonymous Facebook comments about the Applicant.

• Applicant sought disclosure of anonymous individuals’ identity to pursue defamation claim.

• The court concluded that the nature and number of comments by two of the three Facebook account holders overrode any reasonable expectation that they should be entitled to remain anonymous.

Recent Impactful Decisions on Social Media Users Employee Take Over of HMV’s Twitter • In 2013, disgruntled HMV employees briefly

took over the company’s official Twitter account to express their extreme dissatisfaction at being terminated by the retailer.

• 7 subversive messages were sent before the company regained control of the account and deleted the posts.

HMV Twitter Fail

HMV Twitter Fail

Advice for Social Media Users

Advice for Social Media Users

1. Treat anything written or said on the Internet as published work with a wide audience;

2. Be careful of defamatory comments from Facebook friends or website readers;

3. Identify your “writing style” on social media; 4. If in doubt remove content from social media; 5. Review their social media postings, profiles,

blogs, websites, etc. for past defamatory comments.

Advice for Companies and Insurers

1. Centralize Social Media Channels; 2. Control Access Through Limited

Permissions; 3. Get a hand on Passwords; 4. Attitude Shift