Social media and the Internet have raised new issues in defamation law and challenged Canadian courts.
U.S. Congresswoman Taylor Greene was in the news recently for posting controversial comments on Facebook about Democrats and the FBI. In response to a CNN article about these comments, Greene tweeted: “Many posts have been liked. Many posts have been shared. Some did not represent my views.”
Greene’s tweet shows the nature of information communicated through social media. It is interactive and easily accessible, and can be shared broadly. Perhaps most importantly, it has the potential to be accepted at face value, as recent events in the U.S. suggest.
The nature of social media and the Internet has raised new issues in defamation law, which Canadian courts have grappled with in recent years. In this post, I will comment on a couple notable cases addressing some of these issues. But first, I will provide a brief description of defamation law principles.
What is Defamation?
Defamation occurs when an individual publishes false and harmful statements about another person that would tend to lower that person’s reputation in the eyes of society. Spoken defamation is called slander, whereas written defamation is referred to as libel. Defamation on the Internet is sometimes called cyber libel.
To succeed in a civil claim for defamation, a plaintiff must show that the defendant’s statements:
- referred to the plaintiff,
- were defamatory, and
- were published to a third party.
A court will assess the nature of the statements through the eyes of a “reasonable person” – a person who is reasonably thoughtful and informed, and not overly fragile. It is the overall effect of the words that matter, not the defendant’s intention. (Although, intention or motivation is relevant to a finding of malice, a concept discussed below.)
Defences to a Defamation Claim
If the plaintiff successfully proves the legal elements outlined above, the onus shifts to the defendant to defend themself. A defendant can raise several defences to avoid liability. These include justification and fair comment.
Justification applies when the defendant proves the statements in question are substantially true. But defendants should be cautious. Relying on this defence and failing to prove it may result in a finding of malice and increased damages.
Another possible defence is fair comment. This defence protects statements of opinion, so long as they are supported by true facts. To establish this defence, a defendant must show, among other things, that anyone could have reasonably held the defendant’s belief.
A defendant may make the defamatory statement knowing it was false, or with reckless indifference as to whether it was or not. Or they may make the statement to injure the plaintiff out of spite or animosity. In these cases, a court may find malice. Such a finding negates any defence the defendant might advance and increases the plaintiff’s damages.
Damages in Internet Defamation Cases
What makes Internet defamation different? Unlike with traditional media, Internet users can post information to the web immediately. As well, such content is easily and widely accessible, and has the potential to be taken at face value. So, Internet defamation has the potential to be more damaging to an individual’s or corporation’s reputation. Indeed, a court may consider this – the “mode and extent” of publication – when assessing damages. (Damages are money awarded to a plaintiff to compensate them for harm.)
Pritchard v Van Nes, a British Columbia case, shows that Internet defamation can lead to serious harm to an individual’s reputation – and to a substantial damages award. Let us look at the details of this case.
The plaintiff, a school teacher, and defendant lived next to each other. Tensions had been brewing between the two for several years. Because of this, the defendant posted numerous comments about the plaintiff to her Facebook page – comments which her Facebook “friends” piggybacked off with remarks of their own. In total, these comments suggested the plaintiff was a paedophile. One of the defendant’s Facebook friends copied the defendant’s initial post and forwarded it to the principal of the school where the plaintiff worked. Unsurprisingly, this resulted in serious harm to the plaintiff’s reputation.
At trial, the court noted that anyone posting to Facebook would understand some degree of distribution – possibly widespread – could follow. Particularly so in this case, where the defendant had no privacy settings in place. The court found the defendant liable for the republication of her comments on Facebook. The court also found the defendant responsible for the third-party comments which spawned from her initial posts.
Given the seriousness of the allegations, which were unfounded, the court awarded the plaintiff $50,000 in general damages to compensate him for the harm he suffered to his reputation. To denounce the defendant’s thoughtless conduct, the court also awarded the plaintiff $15,000 in punitive damages.
Another issue that arises in the context of Internet defamation is intermediary lability. That is, can a court hold a person responsible for comments made by a third party? According to case law, in certain circumstances the answer is yes.
Let us look at Baglow v Smith, a case which addresses this question.
The plaintiff, John Baglow, ran a website called Dawg’s Blawg. On it he published left-wing commentary on political and public interest issues, including Canada’s involvement in Afghanistan. Specifically, Baglow posted a commentary supporting Omar Khadr’s repatriation to Canada.
Mark and Connie Fournier, two of the three defendants in the lawsuit, moderated an Internet message board called Free Dominion. The couple described the website as a venue for people to express conservative viewpoints. Roger Smith, the third defendant, often published on Free Dominion under the pseudonym Peter O’Donnell.
In 2010, Smith published a lengthy comment on Free Dominion which likened Baglow’s comments about Khadr to support for the Taliban. Baglow objected to this commentary and asked the Fourniers to take it down. They refused, and Baglow sued.
As noted above, to prove a defamation case, a plaintiff must show the defendant published the statements in question to a third party. Here, the Fourniers argued that holding a message board and its operators liable as publishers would be a violation of the guarantee of freedom of expression. They also argued that message boards, as software, are content-neutral, like hyperlinks.
The court rejected these arguments. In the court’s view, message boards are not content-neutral. Indeed, the whole purpose of them is to provide content. In this case, the Fourniers had decided to set up Free Dominion as a politically conservative venue on the Internet. And as moderators, they could control content on the message board.
In the court’s view, accepting the Fourniers’ position would deprive potential plaintiffs of a means to correct reputational damage because most individuals post online anonymously. This would impair the delicate balance between freedom of expression, on the one hand, and the value of an individual’s reputation, which defamation law seeks to protect.
In the end, the court concluded that the publication element of defamation applied to all three defendants, even though the Fourniers themselves did not post the defamatory comments. (Unfortunately for Baglow, his claim ultimately failed as the defendants successfully proved the defence of fair comment.)
Social media is now part of many people’s everyday life. Each day, more and more users join platforms such as Facebook and Twitter. It has never been easier to post content to a broad audience. Yet, this ability carries with it certain dangers, including the risk of a defamation lawsuit. In many cases, the damage caused by defamatory statements is serious and irreversible. Thus, the courts seem willing to grant significant damages awards, as shown in Pritchard.
Unlike in other places such as the U.S., Canadian courts may find an individual liable for defamation published by a third party. Those with control over potentially defamatory content should be aware of this risk.
In the end, in this era of instant communication, we should all be aware of the potential for liability in defamation. And the fine line between legitimate criticisms and defamatory statements.
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The information in this article was correct at time of publishing. The law may have changed since then.
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