Internet and Social Media Defamation

I commonly receive telephone calls related to internet and social media defamation. The internet and social media are ripe with slanderous statements posted by people who perceive they have absolute anonymity. These posts can impact people’s careers, their families, and their reputation. When I get these calls, I generally consider several questions:

  1. Are the comments defamatory?
  2. Are there valid defences that could be raised by the internet poster?
  3. Do we know who posted the information or could we find out?
  4. If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?
  5. Does pursuing the poster make financial sense?

Are the Comments Defamatory?

It is not hard to prove that a comment is defamatory. Basically, you need to prove that a statement was made that would negatively impact a person’s reputation. It should be kept in mind that a random, negative comment such as “I hate that guy” or “He sucks” may not negatively impact someone’s reputation. It really depends on context, including where the comments are posted.

Are there valid defences that could be raised by the internet poster?

There are many possible defences to defamation claims. Some of the most common in internet cases are:

  1. Justification (truth); and
  2. Fair comment (opinion).

Truth is a defence to a defamation claim. Truth can sometimes be hard to prove if a poster does not have first-hand knowledge about what they are posting about. If they are reliant on the statements made by others, there is an open question as to whether that third party will actually back up the claims if push comes to shove in a court proceeding. The poster has the onus of proving the truth of the comments.

Defamation law also protects people from expressing opinions if those opinions are based on “true facts”. For instance, if someone posts a negative review for a restaurant because they did not like their meal, the poster’s opinion is protected. On the other hand, if the poster has a grudge against the restaurant owner and did not actually eat there, but then posts a negative review pretending like they had a bad meal, those comments are not protected by “fair comment” because the comments are not based on “true facts”.

Do we know who posted the information or could we find out?

A practical problem with the internet is that a lot of comments are made anonymously or under a pseudonym. In many cases, a person can seek a court order to require the website or social media company to provide details as to the IP address and the registration information for the poster, but that does not always reveal the actual poster. Thus, there can sometimes be some practical barriers to pursuing information about the poster. Also, obtaining a court order to reveal a poster’s name can be an expensive proposition.

If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?

One of the main obstacles with defamation cases is where the poster is located. If the poster is in Canada, a defamation claim is relatively straightforward. However, if the poster is a non-Canadian, there can be practical issues associated with pursuing that person, depending on the jurisdiction.

The United States is particularly difficult because of the SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act). This Act makes foreign libel judgments (including Canadian judgments) largely unenforceable in U.S. courts. The SPEECH Act also generally makes it so that a U.S. company can ignore a Canadian order requiring disclosure of a poster’s identity.

In addition to jurisdiction issues, a court proceeding is public. Some people do not want the potential exposure and publicity associated with starting a court action. Thus, it may not make sense to start a court proceeding if the internet posting is likely to fade from public consciousness quickly.

Does pursuing the poster make financial sense?

This is a major consideration in any defamation case. The cost of obtaining orders to disclose a person’s identity coupled with the cost of starting a legal action can sometimes exceed what the court might award for damages. In Saskatchewan, we have had “successful” defamation cases where a plaintiff was awarded $10,000-20,000. Likely, the legal costs exceeded that amount of money in those cases. I generally also question whether the poster has any money to pay a judgment.

However, there are cases where a person might have lost a job or business, where the damages might be significant. In a recent case, a Saskatchewan court ordered $240,000 in damages for posting false information on a website.


Internet defamation cases are increasing, and they are complex. Our legal team at Robertson Stromberg LLP would be happy to assist you with any advice that you need in pursuing or defending against an internet defamation case.

Sinclair lifts publication ban on name of teen

Sean Sinclair successfully brought an application to lift a publication ban for the CBC in a sexual assault and drug trafficking case.  The victim, Tonya Pahtayken, a 15-year old leukemia survivor, died shortly after testifying in the criminal trial.  There had been a publication ban on Tonya’s name and any information that might identify her. The CBC, at the request of Tonya’s family who wanted to tell her story, was able to lift that ban and has published an account of Tonya’s struggles here:

Importance of the Press

On March 26, 2020, the Government of Saskatchewan further limited the businesses that can continue to operate in the province as a result of COVID-19.  Among the “critical services” that are to be maintained are local and national media.

Journalists across our province are continuing to provide up-to-date and important information to citizens. They continue to attend press conferences, ask our leaders important questions, try to digest and disseminate important health-related information and disabuse individuals of potentially dangerous misinformation.

Having reliable and professional information broadcast to a wide audience (through newspapers, television and social media) is incredibly important for our public officials to provide updates on this crisis. Dr. Theresa Tam, Canada’s Chief Public Health Officer, and Dr. Saqib Shahab, Saskatchewan’s Chief Medical Health Officer, have, through the media, imparted daily updates on the medical risks and transmission of the virus. Our political leaders have warned residents through daily press briefings on the importance of social distancing to attempt to flatten the curve.

In addition to providing important health information, the media has provided messages of hope and resilience. Media organizations have covered:

  1. The outpouring of support for marginalized youth in Saskatoon:
  2. Families working out together at home while practicing social distancing: and
  3. Veterinarians assisting pets from outside of their clinics:

In recent years, the media has been vilified in some corners.  However, it is at times like these, that the importance of the press is highlighted.  We see journalists, every day, digesting quickly changing information, trying to weed out “fake news” and doing so at potential personal peril as they attend briefings and track down stories.  The media has proven itself to be a “critical service” to the public.

For more information, please contact:


Sean M. Sinclair


Email: s.sinclair

Privacy of Intimate Images in a Digital Age

Privacy of Intimate Images and Videos in a Digital Age

By Sean Sinclair of Robertson Stromberg LLP


The online distribution of intimate images and videos (often referred to as “revenge porn”) is a growing problem in Canada.  According to the RCMP, as outlined in a story by CBC News[1], police forces are on track to handle more than 5,000 complaints of the unauthorized distribution intimate images or videos over a five-year period.  The problem is intensifying in recent years, with police handling more than 1,500 cases per year for each of the past three years.

There are both criminal and civil law issues that arise from these actions.  Some of these issues are addressed below.

Criminal Offence

Section 162.1 of the Criminal Code criminalizes the publication or distribution of intimate images (including videos) of an individual without consent.  A working group looking at whether to pass this law found that the existing offences of voyeurism, obscene publication, criminal harassment, extortion and defamatory libel did not adequately address the issue of non-consensual distribution of intimate images and that changes to the law were needed.[2]  Section 162.1 of the Criminal Code was introduced in 2014, motivated in part by the cases of Rehtaeh Parsons and Amanda Todd who had committed suicide after individuals had distributed intimate images of them online.

An individual in Saskatchewan has since been convicted under Section 162.1[3] and received an 18-month prison sentence.  There are other cases decided across Canada and several ongoing matters which deal with this same issue.

Civil Claims

In addition to criminal law prosecutions, there are a few cases where victims of this conduct have brought court actions against perpetrators.

The nature of the civil lawsuits varies, to some extent, province-to-province.

In Saskatchewan, the government passed amendments to The Privacy Act in 2018 to address the distribution of intimate images.  It is now a tort in Saskatchewan for a person to distribute an intimate image of another person without that person’s consent[4].  The Act presumes that consent was not given, and the poster of the material bears the onus to establish that he or she had reasonable grounds to believe that consent was given, to avoid liability.

There are no reported Saskatchewan decisions on these new sections of The Privacy Act.  Thus, it is difficult to know what monetary compensation might be given for this type of conduct.

In several other provinces, there are no statutes that create civil liability for the online distribution of intimate images.  However, courts have expanded tort law to allow for civil liability for this type of a claim.

The leading case is Jane Doe 464533 v N.D.[5] (an Ontario case where they do not have a statute that deals with this issue).  The basic facts are that the defendant had posted an intimate video of the plaintiff on a pornographic website without consent.  The defendant allegedly also showed the video to some of his friends or acquaintances.  The plaintiff’s friends became aware of the video as well.  It was removed by the defendant after approximately 3 weeks.  There is no way to know how many times it was viewed or downloaded.  The plaintiff was devastated.  She deferred examinations, skipped school and stayed in bed.  She had trouble sleeping and started seeing a counsellor to deal with the emotional fallout.  She experienced serious depression.

The defendant in Jane Doe did not initially file a statement of defence.  He was, therefore, deemed to have admitted to the acts in the claim, including the fact that he posted the video without consent.  The judge found that the acts of the defendant led to liability on three different bases: breach of privacy, intentional infliction of mental distress and breach of confidence.

On the breach of privacy claim, the judge adopted a new tort, which stems from American case law, of “public disclosure of private facts”.  In order to establish that there has been public disclosure of private facts, the judge in Jane Doe indicated that a plaintiff would need to show that there had been publication of a matter that is highly offensive to a reasonable person and is not of legitimate concern to the public.

The Court in Jane Doe awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.

It should be noted that the defendant later successfully brought a motion to lift the default judgment to allow him to defend the claim.[6]


These issues of online dissemination and distribution of intimate images and videos without consent are increasing.  Hopefully though, the relatively new criminal sanctions and developing tort law will have some positive effect in deterring individuals from sharing such materials without consent.





[4] Section 7.3(1) of The Privacy Act

[5] 2016 ONSC 541

[6] 2016 ONSC 4920

Area of ExpertiseMedia Law / Defamation