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Defamation

Have you ever found yourself in a situation where you have been in a heated argument with someone who then proceeds to take their opinion and thoughts to social media?  Our society has changed in recent years. People flock to social media daily to divulge to their ‘friends’ and the public information about their daily lives and anything they feel like sharing.  This becomes a problem when one takes to social media for the purpose of “bashing” another in such a way that the comments may be defamatory in nature.

Defamation includes any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person in such that it damages the good reputation of another.

So what do you do when you find yourself the victim of defamation? There are solutions available to you: the Criminal Code of Canada at section 301. Refers to punishment for defamatory libel.

301. Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

That said, in Canada we are fortunate enough to have the Charter of Rights and Freedoms, often referred to as “the Charter”. The Charter works to protect our rights as citizens of Canada. Perhaps one of the most popular sections of the Charter is section 2 which states the following:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

As Canadians we are free to think what we choose, and we are also entitled to our own beliefs and opinions and the freedom to express ourselves in so far as it does not violate the rights of another. While you are entitled to think what you wish, the spreading of malicious lies about another regardless of the avenue is not permitted by law. Once the material has been shared with a third party you may be held liable for infringing the rights of another. It is important to know the courts’ opinion on these matters; what might seem like a convenient a way to get back at someone may end up costing you much more than you anticipated.

Defamation is a serious crime; it has the potential to seriously tarnish the reputation of another to such a degree as to degrade the public opinion of them, ruin their chances to obtain meaningful employment, negatively impact their business and so on. In the case of Pritchard v. Van Nes, the British Columbia Supreme Court took a good look at defamation and what was required to prove it in a court of law. To be successful you must establish the defendant’s liability for their comments. It should first be qualified that the mode of communication is not limited to that of social media, but may include word of mouth, emails, signs, advertisements and other forms of communication. In essence the test will look at whether the information was heard by a third party.

The plaintiff in a defamation suit is required to prove three things to be successful and receive an award of damages, as found in Grant v. Torstar Corp., 2009 SCC 61 at para 28:

  1. That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
  2. That the words were in fact referring to the plaintiff;
  3. That the words were published, meaning that they were communicated to at least one other person than the plaintiff.

The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

So what happens when harmful material has been republished by another? In The Law of Defamation in Canada, 2nd Ed. (Scarborough: Carswell, 1994) at 348-350, Professor Brown assesses republication in regards to liability.

The general rule is that a person is responsible only for his or her own defamatory publications, and not their repetition by others… However there are several exceptions to this rule. The defendant may intend to authorize another to publish a defamatory communication on his or her behalf. Secondly, a defendant may publish it to someone who is under some moral, legal or social duty to repeat the information in public. Thirdly, a defendant may be liable if the repetition was natural and probable result of his or her publication. These rules apply only where the information repeated is the same or substantially the same so the sum and substance of the original charge remains.

Thus in determining liability for republication the court will look at the specific facts of each case and make a decision based on a number of factors. It is important to point out that in Pritchard v. Van Nes, Ms. Van Nes had posted defamatory comments on Facebook about her neighbor, which were commented on by over 40 people. The comments were such to impute that Mr. Pritchard, a middle school teacher, was a pedophile and a ‘creeper’. Not only did the Facebook posts receive comments, but other ‘friends’ of the defendant shared these posts. The ramifications of these posts escalated to the point where one concerned person sent an email to Mr. Pritchard’s employer. The letter suggested his behavior was not acceptable for a teacher and requested the principal act on the information. The court was quick to determine that all three criteria in Grant v. Torstar Corp had been satisfied and moved on to look at the defendants liability in so far as the republication of her comments. At para; 81 the court noted;

It is uncontroversial that the distribution of information – comments, photographs, videos, links to items of interest – amongst users is fundamental to the use of a social media platform such as Facebook. Second, Facebook in particular facilitates such distribution through its structure or architecture. Para 83: In my view the nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, my follow.

As a result of the mere nature of Facebook the court found Ms. Van Nes to be liable for all the republication through Facebook. The court looked further at failure to remove the defamatory material, and noted that a deliberate action may include failure to act to remove the defamatory material once there was actual knowledge the posts were out.
Once a person is found liable for defamation the court will then address damages. The court in Leenen v. Canadian Broadcasting Corp. 2000 CanLII 22380 ONSC considered the factors which should be considered to assess damages at para. 205;

One must always be aware of not only the damage inflicted to a person’s reputation but also the fact that once damaged a reputation is a very difficult thing to restore… a plaintiff is entitled to be compensated not only for the injury caused by the damage to his integrity within his board community but also for the suffering occasioned by defamation.

The court went further to enumerate a non-exhaustive list of factors:

  1. The seriousness of the defamatory statement;
  2. The identity of the accuser;
  3. The breadth of the distribution of the publication of libel
  4. Republication of the libel;
  5. The failure to give the audience both sides of the picture and not presenting a balanced review;
  6. The desire to increase one’s professional reputation or to increase ratings of a particular program;
  7. The conduct of the defendant and defendant’s counsel through to the end of trial;
  8. The absence or refusal of any retraction or apology;
  9. The failure to establish a plea of justification.

A plaintiff may also seek aggravated damages as well, such as in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, found at para 90:

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff.

Damages obviously vary depending on the individual facts of each case, but it is worth noting that in Pritchard v. Van Nes, 2016 BCSC 686, Mr. Pritchard was awarded a total of $65,000 in damages and was also entitled to costs. Thus, it is clear to see the courts take defamation very seriously, and as such it is a serious offence and should not be taken lightly.
If you find yourself in a situation where someone has made defamatory statements about you or you have been accused of defamation, legal advice is strongly recommended given the potentially serious nature of the situation.. For more information please reach out to our team at Don Scott McMurray Law Office, as we would be happy to assist.