LIBEL AND SLANDER IN THE ERA OF SOCIAL MEDIA – Defamation

It takes years to build a good reputation, and a second for someone to destroy it, so, it is important to think twice before ranting on Facebook about hair in your food as you might find yourself coughing out thousands of dollars to the aggrieved restaurant owner who claims that your post has had a deleterious effect on their business. According to Statista, in 2021, there are approximately 31.76 million social network users in Canada, and this figure is projected to grow to 38.18 million users in 2023. Needless to say, that social media platforms are pivotal as the communication channel for many, so the likelihood of a post going viral in mini seconds is very high. In the era of social media, given the speed a Facebook post can go ‘viral’ and reach a worldwide audience, it is important to think twice before clicking on the ‘send’ button because you can be guilty of Cyber-libel, a term used when an individual has posted or emailed an untrue statement relating to someone else on the internet.

What is Defamation?

Section 1 of the Defamation Act,2000 says that Defamation means libel and slander. Libel and Slander are types of defamatory statements. Libel is a defamatory statement that is written while Slander is a defamatory statement that is spoken. Libel and Slander are now treated alike, and the same penalty applies regardless of whether the defamatory material is written or spoken. Defamation Act, Alberta, provides that for a statement to be libellous it needs to reach only one person other than yourself, a large audience is not necessary. Similarly, to show that a material is slanderous, you must prove that it was heard by a third party. Defamatory material can take any form including blogs, articles, poems, photos, social media posts, songs, email, paintings, online reviews and more. If you spread something defamatory over the internet, an aggrieved individual may bring a defamation suit against you to recover costs for harm sustained.

Section 3 of Libel and Slander Act, 1942 states that in an action for libel or slander the plaintiff may aver that the words or matter complained of were used in a defamatory sense, specifying the defamatory sense without any prefatory averment to show how the words or matter were used in that sense, and the averment shall be put in issue by the denial of the alleged libel or slander, and where the words or matter set forth with or without the alleged meaning show a cause of action, the statement of claim shall be sufficient.

In Botiuk v Toronto Free Press Publications Ltd, the Alberta Court of Appeal defined defamatory statements as ‘publications which tend to lower a person in the estimation of right-thinking members of society or to expose a person to hatred, contempt, or ridicule.

The tort of defamation is a strict liability offence, so defendants will be liable whether they acted intentionally or carelessly in publicizing the defamatory material. Individuals can bring defamation claims by filing a statement of claim that contains the wording of the defamatory material. While the defamation case is being dealt with by the court, you can seek an interlocutory injunction requesting that the defamatory material not be published until the case is settled. To claim reputational damages, you must convince the court of the following 3 elements:

• That the defamatory material was published, and that the statements in the publication are not substantiated with facts
• That you or your business were identified in the publication
• That is caused or is continuing to cause harm to your good name

What Happens If Defamatory Material Goes Viral?

There are catastrophic effects if a single defamatory post goes viral and reaches a larger audience than was anticipated. In Pritchard v Van Nes, the neighbours did not get on with each other which led to the defendant making a false and slanderous Facebook post about the Plaintiff who was a high school teacher, including accusations of child molestation and pedophilia. He deleted his post after 27hours, but it was too late as the post had gone viral. The defendant characterized her post as ‘venting’, so the British Columbia Supreme Court held the following:

• That the defendant was liable for his defamatory statements about the plaintiff
• That the defendant was liable for the repetitions and republications through both Facebook posts and by e-mail, of the defendant’s defamatory statements because an implied authorization for republication was inherent in the nature and probable result of the defendant posting his defamatory statements on Facebook
• That the defendant was liable for the defamatory statements about the plaintiff posted as comments to the defendant’s Facebook page by her Facebook ‘friends’ because the defendant knew of the defamatory comments and did not remove them within a reasonable time.

Also, in Barrick Gold Corporation v Lopehandia et al, the Ontario Supreme Court emphasized the harm that can come from one careless defamatory post about someone else on social media. Justice Faieta stated that 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. In this case, Justice Faieta awarded $15,000 in general damages and $15,000 in aggravated damages due to the anguish the plaintiff suffered.

Pritchard makes it clear that courts are beginning to embrace and recognize the impact a single defamatory post can have on the plaintiff and are beginning to hold those who make a libellous or slanderous comment accountable. This case also points out that a social media user may not only be liable for his posts or comments, but liability could attach to a user because of reposts, or followers sharing the defamatory comments on their own social media page and platforms.

Employers Have a Duty to Protect Their Staff on Social Media

A landmark case in this area emerged in 2016 on the use of social media grievance. In Amalgamated Transit Union v Toronto Transit Commission, there was a union grievance involving the Toronto Transit Commission’s (TTC) use of a Twitter account to receive customer service questions. Some of the customer tweets were complimentary while the rest were critical of TTC’s service and a couple of these tweets used vulgar and insulting words to express their displeasure about TTC’s employees and included personal information identifying these employees.

The union accepted that the office tweets constituted workplace harassment and bullying and argued that TTC’s response was insufficient. The union sought an order requiring the TTC to shut down the Twitter account. The mediator refused to order the TTC to stop using Twitter but provided detailed directions and recommendations for the TTC‘s use of Twitter to protect its employees from bullying and harassment because of offensive tweets.

On the other hand, employees can also sue their employer for defamation of character, in Hampton Securities v Dean 2018 the employee claimed her employer filed a false notice containing allegations that she failed to follow policies and procedures and engaged in unauthorized trading with the securities commission after her termination. She was not only successful in her defamation claim against her employer but she was also awarded aggravated damages because the employer completely failed to establish that what was contained in the notice was true.

Defences Available for Defamation Claim

In Huff v Zuk, the Alberta Court of Appeal recently discussed the tort of defamation and defences. It found that the defendant had defamed Dr. Huff and could not avail himself of any of the applicable defences. A defendant has possible defences should a plaintiff allege issues of defamation based on the defendant’s social media post.

• Truth or Justification- although a statement may hurt your reputation and ego, if the statement is true, then the defendant has a strong defence if sued.
• Absolute Privilege– This refers to the fact that in certain circumstances, an individual is immune from liability for defamatory statements, no matter how false and malicious it may be. In Caron v A, the British Columbia Court of Appeal (BCCA) was tasked with determining whether complaints made to the police should be protected by absolute privilege. The BCCA believed that long-standing protection of reputation is tied to the innate worthiness and dignity of the individual.
• Qualified Privilege– Generally, qualified privilege refers to when a statement is made in the performance of a moral, legal, or social duty, in which there is a reciprocal interest between the parties making and receiving the statement. For example, if an individual asks her former employer for a reference, her prospective employer calls the former employer and he discloses that the individual was not efficient and was a pain to work with, in this instance, the former employer has a moral obligation to disclose this information to the prospective employer. If the individual turns around and sues her former employer for defamation of character, the former employer will have a strong defence so long as the comment was not disclosed to a third party, other than the prospective employer.
• Fair Comment: Media houses are allowed to publish opinions about public officials and public figures without fear of a libel suit. However, the public figure has the burden of proving that the person commenting did so maliciously. In Canada, for material to constitute a fair comment, the comment must be on a matter of public interest (excluding gossip) based on known and provable facts. In Chernesky v Armadale Publications Ltd, there was a rule stating that the opinion must be honestly held by the publisher, but the rule changed in Rafe Mair v Kari Simpson, to require that the opinion can be held by anyone, not just a publisher.
• Responsible communication on matters of public interest: In Grant v Torstar Corp, the Supreme Court of Canada (SCC) established a new defence to libel. Court held that journalists should be able to report statements and allegations, even if not true if there’s a public interest in distributing the information. The defence can be successfully applied upon proof of the following:
• That the news was urgent, serious and of importance to the public interest
• The journalist tried to use reliable sources and tried to get the report of the other side of the story.
• Implied or Express ConsentCommunications made with the implied or express consent of the plaintiff will suffice as a good defence. In Syms v Warren (1976), consent must be established. It must be given or be able to be inferred for each publication of the defamatory material.

In summation, there’s a thin line between Freedom of Speech and wanting to exercise your Section 2 Charter rights and the need to spread libellous and scandalous material on social media. Social media users must understand that their defamatory tweet, Facebook post or Instagram rant will not be held behind a cloak of anonymity. Caselaw and legislation around Defamation shows that courts have begun to award heavy penalties for damages suffered by the plaintiff due to defamation, libel, and slander.

At Osuji and Smith Lawyers, we deal with defamation cases day in day out, if you believe you have been defamed, you should consider contacting us for legal advice to prevent any further spread of the defamatory material.

Author: Lydia Iboko