Considerations of Social Media Defamation
"Defamation is an area of tort law that protects one’s reputation. So, in the same way that a physical injury injures a person physically, the words we say and the statements we make about somebody can injure their reputation." - Marko Vesely
On Episode 2: Considerations of Social Media Defamation – Mark Fancourt-Smith and Alix Stoicheff speak to litigation lawyers, Marko Vesely and Ricki-Lee Gerbrandt, about defamation—what it is, how it has traditionally been handled, and what companies should consider when faced with online defamation.
Guest(s):
Marko Vesley Ricki-Lee Gerbrandt
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Don't have time to listen to the full podcast? Here's what this episode covered:
What is defamation and what is the difference between permissible criticism and actual defamation? – 00:01:10
What is an example of some of the challenges that arise from online defamation compared to traditional/print defamation? - 00:02:20
Can defamation charges be enforced across jurisdictions and borders? – 00:03:43
How quickly can speech be removed online? – 00:04:41
What are some of the practical and conceptual aspects of online defamation that courts are struggling with? – 00:06:12
Should you sue someone for online defamation? – 00:07:59
What are some tips that a person or a business might be able to look to if they are concerned that they're being defamed online? – 00:10:58
Transcript
Mark Fancourt-Smith 0:06
Welcome to LawsonInsight. I'm Mark Fancourt-Smith, a partner in the Commercial Dispute and Resolution group in the Vancouver office, specializing in Technology and Intellectual Property Litigation.
Alixandra Stoicheff 0:16
And I'm Alixandra Stoicheff, a Litigation and Dispute Resolution associate with a focus on Civil Litigation and Regulatory Law, and I practice in the Calgary office. Thank you for joining us on this podcast brought to you by Lawson Lundell LLP. Over the next few episodes, we will be sitting down with lawyers from across the firm's practice groups to break down the current legal issues and to give you and your business's key information.
Mark Fancourt-Smith 0:37
On this episode, we'll be speaking with litigation lawyers, Marko Vesely and Ricki-Lee Gerbrandt on considerations around online defamation. Marco is a partner in our Litigation and Dispute Resolution group in our Vancouver office. And Ricki-Lee is an associate in the same group working in Calgary. Both have experience representing clients on issues relating to online defamation. And on that note, I also practice in that area. So I'm indulging my own interest to some extent in bringing this topic on today. So I might chime in a little bit more than usual. So please bear with me, Alix, and welcome Marko! Welcome, Ricki!
Marko Vesely and Ricki-Lee Gerbrandt 1:09
Thank you. Thank you.
Alixandra Stoicheff 1:10
Marko, I'm wondering if at the outset, you could give us a 20,000 foot view of what the elements of defamation are and where that line is between allowable or permissible criticism and actual defamation?
Marko Vesely 1:22
Defamation is the is the area of tort law that protects one's reputation. So in the same way that a physical injury injures a person physically, the words that we say and the statements we make about somebody can injure their reputation. And the common law has for centuries recognized that there is a legitimate interest there to be protected. The starting principle is that we live in a society that accords a high value to freedom of expression. So generally, people are encouraged to say things, even things other people don't like, even things that are critical and disparaging. But what the law tries to do is draw a line to balance that interest with the legitimate protection of an individual's reputation. But what it tries to do is distinguish opinions which are generally more permissible from statements of fact, when they're on true that are false and disparaging. It also looks to the circumstances of the speaker and the circumstances of the people to whom they're speaking, and it tries to draw that boundary as best it can and the edge cases it can be quite challenging to distinguish it.
Mark Fancourt-Smith 2:20
Ricki, if I can direct this question to you, what's an example of a characteristic or a particular challenge associated with online defamation for the courts to deal with as opposed to when they deal with traditional offline or the classic print defamation?
Ricki-Lee Gerbrandt 2:33
A really good example of online defamation and how it differs from print defamation in the law is qualified privilege, which basically allows a defendant to assert qualified privilege if they had a duty to provide information to someone or a small group of people, and they had a corresponding interest to receive it. But this is defences really impossible to assert are very unlikely to be asserted successfully in online defamation, where the publication is really published to the world. So the courts in Canada actually fix this. But it took some time, they created an offense called the responsible communication in the public interest defence, which permits people to make assertions of facts that might not be entirely true, so long as they completed some due diligence, took some steps to make sure to check to see if what they were saying was accurate, those sorts of things. The issue with this is that it's really only available to journalists, because most non journalists don't complete the requisite steps necessary. courts, of course, say, oh, we'll be flexible and applying this. But that hasn't panned out so well. So this is just one example of how defamation law really is outdated for the online world.
Alixandra Stoicheff 3:43
Ricki, you mentioned that anything published online is really published to the world. And that got me thinking that there are issues no doubt of jurisdiction and enforcement of judgments when we're dealing with the online world versus a traditional print world, if I could put it that way.
Ricki-Lee Gerbrandt 3:57
These are really key issues today that courts really and plaintiffs and defendants have to deal with. So one issue with online defamation compared to traditional print defamation is knowing where to sue or being able to enforce a judgment if you actually eventually get one. So if the plaintiff and defendant are both in the same province, the online defamation mainly occurred in that province was read by people in that province and impacted the plaintiff's reputation in that province, then bringing the claim in that province can be very straightforward. But in many instances, online defamation was made by someone in another jurisdiction, or the reputation was harmed in another jurisdiction, or perhaps there's an intermediary platform or message board in another jurisdiction that's involved, so it can get very complicated.
Mark Fancourt-Smith 4:41
Marko, one of the other features of online defamation that you and I have both discussed and had to deal with on files is in addition to it kind of being everywhere, no where is that it's got a unique persistence in a way that print defamation didn't really which means it's just still available all the way until trial. So what do you say to clients whose say, Look, I don't want to wait until trial I want this dealt with now I want this taken down or removed, or I want this publication to stop.
Marko Vesely 5:06
That is certainly a concern. And it's an understandable desire from someone's part. Often, if they could, if they could have that remedy and forego the damages the money they might recover, they would probably snatch that up in a second. But unfortunately, the law is very reluctant to grant an interim order or an order before we've had a trial on the merits, that would force a person to take down speech. In other words, to restrain speech before we've had a finding and a trial to determine that it is appropriate to censor it. So what we have is a much higher standard to getting that kind of injunction to the point that they're really quite rare. And so even though it's a common desire, it is one unfortunately, where we often have to advise people that absent exceptional circumstances, they're unlikely to get that kind of urgent relief. And I should say, there may be other strategies of getting at it. So there may be that publication may occur on a website whose Terms of Service don't allow that kind of speech. And maybe there are ways to get it effectively taken down. But it's very difficult to get a sitting judge of the court to order that that speech be taken down before a trial.
Alixandra Stoicheff 6:12
So Ricki, you've highlighted some of the ways that this area of law is evolving to better suit the online world. But I'm wondering if you can speak to us about some of the practical and conceptual aspects of online defamation that the courts are currently grappling with?
Ricki-Lee Gerbrandt 6:25
Sure, there is a quite a few number of these, Alix that I could talk about, but I'll try to highlight quickly, four big ones here, or for emerging ones I should say. So in the first case, courts may permit the plaintiff to bring a lawsuit against john doe, and actually serve the lawsuit via the online platform that the defendant is to post the defamatory material. For example, Brian Burke was able to sue John Doe defendants and serve them via the hockey message board that the defendants use to post the impugned content. In the second instance, courts have used their ability to draw inferences to find that it was likely the defendant who posted the defamatory materials, despite them blaming others or attempting to hide behind anonymity on the internet, then there are more substantial legal issues I mentioned one earlier. But the third point, I would say, by way of another example, is for a court to determine whether a constitutes a publication of defamatory materials if someone merely posts a hyperlink, and it is the hyperlink to content that is allegedly defamatory. So the Supreme Court decided this issue after lower courts grappled with this for a while, and they held that it's not publication to merely post a hyperlink something more is required, such as repeating or endorsing the defamatory material in that hyperlink. So finally, another issue in online defamation is the amount of damages that could potentially be awarded. Online defamation has a very vast audience to the world in some instances, and courts have granted large damage awards in situations, particularly at the defendant engaged in sort of a campaign of internet defamation online.
Mark Fancourt-Smith 7:59
So Ricki, I just wanted to follow on with a question about, again, some of the differences between traditional and online defamation. In any case, there are going to be drawbacks with starting a lawsuit for defamation, one of which might be drawing additional attention to the defamatory statements. Another is making them reportable by anyone once they've been pleaded. How do these concerns play out online?
Ricki-Lee Gerbrandt 8:21
So this is a significant issue that I end up giving advice on quite often. So because businesses and people are on social media nowadays, it can often happen that a person or another business posts something critical, defamatory, disparaging or unflattering online. And perhaps there is some truth to that statement or opinion or perhaps there isn't. But usually in these situations, emotions run quite high, understandably, and so as Marco mentioned earlier, although the business may want that post removed immediately, or to bring a lawsuit or otherwise post a pithy comeback response online, often those types of actions done immediately without much strategy or thought end up generating more publicity around the initial comments than there otherwise would have been. So oftentimes, after a few days, no one pays any heed to the comments that were initially made online, and they just go away. But by forcefully responding without strategic thought it can cause blowback and generate a lot of unwanted publicity. This is the same for cease and desist letters. If a recipient receives one of these, they might just post it online, make another damaging comment. And so the effect of this or the end result, what I oftentimes end up saying to people coming to me with these issues is that you know, give it some thought carefully draft what you want to draft or get a lawyer involved in that situation, and kind of take a PR strategy to it with the full awareness that whatever you post in that comment in that response, or that letter could likely end up being spread around social media. So just an awareness and thoughtfulness should go into any response rather than an immediate gut jerk reaction to these situations.
Mark Fancourt-Smith 9:59
And I suppose posing and thinking primarily of social media, the reaction is, in many cases, what the person who posted the comment wanted in the first place.
Ricki-Lee Gerbrandt 10:08
Exactly. And if you give a reaction that isn't well thought out and doesn't have serious consideration going into it, it could end up being far more harmful than if you had just ignored it and let it go away.
Marko Vesely 10:20
Building on what Rickie-Lee said defamation is perhaps the only area of the law where if one brings a lawsuit, one can actually make one's life far worse than if one had not beyond simply losing the case. And for the reasons she gave, it's especially important to think through the strategy and how whether that's going to help her hurt. And if one did not believe that one need only Google the phrase MC libel, which is a tale of a terribly ill conceived lawsuit by McDonald's against a couple who was protesting some of their business practices. And it ended up simply piling more attention on the issue and gave rise to a quite a cautionary tale about the use of defamation lawsuits.
Alixandra Stoicheff 10:58
Marko, just following up on that both you and Ricky here have really highlighted the importance of having a clear strategy when dealing with some of these issues. And I'm wondering if you can give us sort of three or four tips that a person or a business might be able to look to if they are concerned that they're being defamed online?
Marko Vesely 11:15
Sure. Well, the lawsuit needs to fit into a larger strategy of how the problem how the damage to reputation is going to be addressed. Certainly, in some cases, a civil action is the appropriate response. And so with legal, appropriate legal advice, that may be the conclusion one reaches, on the other hand, there may be a strategy of effectively kind of waiting it out. Because one of the qualities of the internet and the fact that anyone can publish is tomorrow, there's going to be a lot of people publishing more stuff. And sometimes what seems like a pressing issue, the day sort of fades with time, and other times it doesn't. So that is an alternative strategy. And finally, there are sort of other ways to manage the issue. There may be ways to have content de indexed, so it's out there, but not so accessible. There may be strategies to persuade. As we said earlier, their terms of service on websites, they may take it down if they feel it's contrary to their terms. And they're also a reputation management services that can sometimes augment what we can do as lawyers.
Mark Fancourt-Smith 12:13
Thanks very much, Marko. Thank you, Ricki. Great to talk to you both today. Thank you for joining us on LawsonInsight. And thanks again to Marko Vesley and Ricki-Lee Gerbrandt for joining us today.
Alixandra Stoicheff 12:24
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