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.

Conclusion

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.

Summary Judgment in Family Law Proceedings: Where Are We Now?

Summary Judgement in Family Law Proceedings: Where Are We Now? (CPD 259)

Join Sean Sinclair (Robertson Stromberg) for this informative discussion about summary judgment in family law proceedings. The “new Rules of Court” were introduced with considerable fanfare and with the potential to assist litigants seeking timely and cost-effective access to justice. Among the changes was the development of a summary judgment procedure to avoid the needless expense and time of a trial. In the family law realm, the summary judgment process was potentially a tool to allow families to obtain affordable judicial finality. At the now seven year mark of the introduction of the “new Rules”, this webinar will explore the reported cases and developments regarding summary judgment in family law proceedings with an eye on whether the summary judgment process has been successful in promoting timely and cost-effective access to justice.

September 15 (Online) | 12:00 – 1:00 PM

Qualifies for 1 CPD Hour

Delay in Professional Disciplinary Cases

Abrametz v Law Society of Saskatchewan is an important new decision from the Saskatchewan Court of Appeal dealing with the impact of delay in professional disciplinary cases.

The charges against a lawyer under discipline, Peter Abrametz, were stayed by the Court of Appeal because of the time it took to investigate and prosecute the case. The investigation in Abrametz started in 2012 and ended with a hearing in 2018. The member was under an interim suspension since 2013.

Some of the important takeaways from Abrametz include:

  1. The courts will look at the delay both in the investigation and prosecution of the charges. This is different than criminal cases, where the courts typically only look at the prosecution length;
  2. To get a stay of charges, there must be “undue delay”. The Court looked at the Law Society’s reasons for delay and attempted to determine which delays were attributable to the regulator, as opposed to the member;
  3. The Law Society was determined to be responsible for 32 ½ months of delay, which was found to be unreasonable;
  4. In order for charges to be stayed, the member had to establish that there was harm or disadvantage suffered that was serious enough that to offend the public’s sense of decency and fairness. The interim suspension against Mr. Abrametz was a significant consideration in relation to this factor.

Abrametz is an extension of the Supreme Court’s decision in R. v. Jordan (2016), 1 S.C.R. 631 dealing with delay in criminal proceedings.

The impact of Abrametz is that it is now more important than ever that regulators investigate and prosecute cases swiftly. To the extent that delays are experienced, regulators should keep careful records as to why the delays are occurring and to who those delays are attributable. If they are delays caused by the member, those delays may not be counted against the regulator in determining whether there was “undue delay”.

Sean Sinclair of Robertson Stromberg LLP would be pleased to answer any questions or concerns that you have in relation to the Abrametz decision or any other regulatory issues. Sean can be reached at s.sinclair@rslaw.com or 306-933-1367.

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: https://www.cbc.ca/news/canada/saskatoon/judge-lifts-pub-ban-on-name-of-teen-1.5609368.

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: https://thestarphoenix.com/news/local-news/the-helpers-in-saskatoon-an-outpouring-of-support-for-youth/
  2. Families working out together at home while practicing social distancing: https://saskatoon.ctvnews.ca/more-saskatoon-families-working-out-together-at-home-during-isolation-physical-distancing-1.4870362 and
  3. Veterinarians assisting pets from outside of their clinics: https://www.cbc.ca/news/canada/saskatchewan/sask-curbside-veterinary-medicine-animal-health-covid-19-1.5511951.

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

306.933.1367

Email: s.sinclair

Lawyers Sean M Sinclair