Social Media Law (Part 3: Defamation)

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The use of social means to engage in defamation is nothing new. Indeed, defamation requires the very social element of publication. Social media - Facebook pages or posts, tweets, blogs and online comments - merely make defamation easier and more pervasive.

Canadian courts have struggled to balance the interests of free speech with the interests of individuals who wish to challenge and find redress for defamatory statements. A recent Ontario case has framed the issue as follows:

     “There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.” Manson v. John Doe , 2013 ONSC 628 (CanLII),

The test laid out by the Supreme Court of Canada (Grant v. Torstar Corp., 2009 SCC 61 (CanLII)) is as follows: In order to establish a claim for defamation a plaintiff must establish that:

a)   the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

b)   the words in fact refer to the plaintiff; and

c)   the words were published, i.e., that they were communicated to at least one person other than the plaintiff.

In Manson, the court ordered the defendant to pay damages of $100,000 plus aggravated damages of $50,000 and costs. However, the defenant remains anonymous.

Another recent decision in Baglow v. Smith, 2012 ONCA 407 (CanLII), hints at the court’s willingness to permit parties to engage in a heated online political debate, without crossing the line of defamation. In that case, the court observed: “Commentators engaging in the cut and thrust of political discourse in the internet blogosphere can be fervent, if not florid, in the expression of their views.” In the lower court, the statements made in this “cut and thrust” were determined not to constitute defamation. However, on appeal, the court decided the matter was suitable for a full trial and overturned the lower court findings. This is one case to watch.

Related Reading: ipblog’s Defamation Archive