Facebook Posts - Re: Defamation

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1776
Page Categories:	[Defamation]
Citation:	Facebook Posts - Re: Defamation, CLNP 1776, <https://rvt.link/dw>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2024/11/01

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Crookes v. Newton, 2011 SCC 47 (CanLII), [2011] 3 SCR 269

[37] I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments. It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64:

Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie”. The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse. [Blair J.A.’s emphasis deleted.]

[38] New activities on the Internet and the greater potential for anonymity amplify even further the ease with which a reputation can be harmed online:

The rapid expansion of the Internet coupled with the surging popularity of social networking services like Facebook and Twitter has created a situation where everyone is a potential publisher, including those unfamiliar with defamation law. A reputation can be destroyed in the click of a mouse, an anonymous email or an ill-timed Tweet.

(Bryan G. Baynham, Q.C., and Daniel J. Reid, “The Modern-Day Soapbox: Defamation in the Age of the Internet”, in Defamation Law: Materials prepared for the Continuing Legal Education seminar, Defamation Law 2010 (2010), at p. 3.1.1)

...

[42] Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation. While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.

[43] I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.

...

[52] We add a final comment, with an eye to future technological changes. Abella J., as noted, states that “a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers” (para. 14). So long as it is necessary to click on a hyperlink to access its content, this may be correct. What, however, of features in which a hyperlink projects content on the page automatically, or in a separate frame, with little or no prompting from the reader? Would inclusion of such a hyperlink, by itself, amount to publication? Like the issue of embedded hyperlinks, this question is not before us and should not be taken to have been decided in this case. Like Abella J. (at para. 43), we would leave issues concerning hyperlinks of this sort to be dealt with if and when they arise.

[53] We agree with Abella J. that this appeal should be dismissed with costs.

Robinson v. Niganobe, 2023 ONSC 4281 (CanLII)

[29] In Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), [2004] O.J. No. 2329, referencing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, the Ontario Court of Appeal provides useful instructions on the factors that a court should consider in assessing damages for defamation. The court notes that the factors to consider in determining damages for defamation as summarized in Hill v. Church of Scientology are as follows,

(1) The plaintiff’s position and standing;

(2) The nature and seriousness of the defamatory statements;

(3) The mode and extent of publication;

(4) The absence or refusal of any retraction or apology;

(5) The whole conduct and nature of the defendant from publication through judgment; and

(6) Any evidence of aggravating and mitigating circumstances.

[30] The communications in question were posted on Facebook. This type of communication allows defamatory statements to be distributed broadly. In the case at bar, there were over two thousand Facebook followers and undoubtedly the statements made by the defendant received a large audience. This is a factor to be considered. The defendant did not defend this action. She has made no retraction or apology. Furthermore, it is difficult not to believe that the defendant was using the Facebook posts to tarnish the reputation of the plaintiff to gain some advantage in the family law proceeding which followed the Facebook messages. In mitigation, the Facebook posts were limited to two and were close in time, one being on September 30, 2022, and one being on October 3, 2022.

[31] Balancing the factors set out in Barrick Gold Corp. and Hill, I assess the general damages of the plaintiff at $50,000. As to aggravated damages, the Supreme Court of Canada in Hill v. Church of Scientology of Toronto provides useful instruction to the court in paragraphs 188 to 190 inclusive as follows,

Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high‑handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111:

Where the defendant is guilty of insulting, high‑handed, spiteful, malicious or oppressive conduct which increases the mental distress ‑‑ the humiliation, indignation, anxiety, grief, fear and the like ‑‑ suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as "aggravated damages".

These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right‑thinking people arising from the malicious conduct of the defendant.

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. See, for example, Walker v. CFTO Ltd., supra, at p. 111; Vogel, supra, at p. 178; Kerr v. Conlogue (1992), 1992 CanLII 924 (BC SC), 65 B.C.L.R. (2d) 70 (S.C.), at p. 93; and Cassell & Co. v. Broome, supra, at pp. 825‑26. The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff. See Taylor v. Despard, supra, at p. 975.

[32] On the facts of this case, I find that the actions of the conduct were high-handed and oppressive in that they were designed to paint the plaintiff in an unfavourable position post separation to obviously attempt to gain an advantage in the family law proceedings involving the parties, and to damage the relationship that the plaintiff has wit his daughter, Nakina. This portrayal of the plaintiff as a neglectful father, in the face of the evidence as to what type of father the plaintiff actually is, undoubtedly increased the plaintiff’s anxiety and mental distress resulting from the Facebook posts and the plaintiff’s overall suffering.

[33] I assess aggravated damages at $25,000.

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

[63] There are three modes in which the defamation took place. There are Ms. Van Nes’ own remarks, published by her to her own Facebook page; there is the republication of Ms. Van Nes’ remarks, as they propagated through Facebook and, in one case, through email; and there are defamatory remarks made by third parties in reaction to Ms. Van Nes’ post. The plaintiff submits the defendant is liable for all defamation that occurred in these three modes.

Defendant’s Liability for her own Facebook Posts

[64] The elements required to establish a claim in defamation were summarized in Grant v. Torstar Corp., 2009 SCC 61, at para. 28:

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (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 in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism… . (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se… . 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.

[Citations omitted.]

[65] I find Mr. Pritchard has proven that Ms. Van Nes’ initial Facebook posts and her subsequent replies to her “friends”’ comments were defamatory, in that they tended to lower the plaintiff’s reputation in the eyes of a reasonable person. The ordinary and natural meaning of Van Nes’ comments unequivocally described Mr. Pritchard as a “nutter”, a “creep”, and an abnormal person.

[66] Liability for defamation also arises in this case through the innuendo of the defendant’s words. An innuendo is made where the defamatory meaning of words arises from inference or implication: Hodgson v. Canadian Newspapers Co., (1998), 1998 CanLII 14820 (ON SC), 39 OR (3d) 235 (Ont. Gen. Div.); rev’d in part on other grounds, [(2000), 2000 CanLII 14715 (ON CA), 49 OR (3d) 161; leave to appeal ref’d [2000] S.C.C.A. No. 465. The innuendo must be one that a reasonable reader would draw from the words and it must not be one guided by any special knowledge, legal or otherwise: Gatley on Libel and Slander, 9th ed. (1998: Sweet & Maxwell), at 82, §3.15.

...

[80] Mr. Pritchard provided some evidence to the court, based on his personal knowledge, as to the operation of Facebook. No expert evidence was tendered. In my view, social media platforms and applications, Facebook in particular, are so ubiquitous that the court is able to take judicial notice of some aspects of their nature and operation.

[81] First, 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.

[82] Second, Facebook in particular facilitates such distribution through its structure or architecture. An individual user’s posts to their own page are automatically shared with “friends” who are linked to the user’s page. As “friends” react by commenting, the “friends”’ comments may be spread automatically to “friends of friends”. Such comments are solicited implicitly through the medium’s tools that allow “Comment” on a post and “Reply” to a comment (not to mention soliciting endorsement through use of the “Like” button). Further distribution may take place through the “Share” function. This is intended only as a generic description; no detailed evidence was presented as to the specific features in operation on Facebook at the time of this incident. Nevertheless, it appears from the evidence that these basic features all played a role in the dissemination of Ms. Van Nes’ defamatory remarks.

[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, may follow. This is particularly true in the case of the defendant, who had no privacy settings in place and who had more than 2,000 “friends”. The defendant must be taken to have implicitly authorized the republication of her posts. There is evidence from which widespread dissemination of the defamation through republication may be inferred. There is actual evidence of the republication at least to Ms. Regnier, who learned of the posts through the comments posted by several of her own “friends”. There is the indirect evidence through the comments made by neighbours who subsequently encountered Ms. Pritchard and remarked on the posts. And there is the possibility, at least, of republication having been made on Facebook by Mr. Parks; he stated in one of his comments that he had shared her post on his own Facebook page. Whether he did in fact do so has not been proven. If he did, such was implicitly authorized by Ms. Van Nes.

...

[84] All of this republication through Facebook was the natural and probable result of the defendant having posted her defamatory remarks. Ms. Van Nes is liable for all of the republication through Facebook.

[85] This brings us to the question of the defendant’s liability for other forms of republication, specifically through email. Mr. Parks, after posting to Ms. Van Nes’ timeline his encouragement to spread the news, stating “why don’t we let the world know”, then republished by sending to Mr. Horton the email message attaching Ms. Van Nes’ photo of the mirror. Mr. Parks made editorial comments in that email, stating that the plaintiff was spying and referring to him as someone who would be understood by the public to be a potential paedophile; his editorialization merely summarized and made explicit the innuendo Ms. Van Nes had engaged in.

[86] I make no finding as to whether Mr. Parks was justified in reporting the activity on Ms. Van Nes’ Facebook page to Mr. Pritchard’s school principal. That issue, of course, is not before me. The essential point, with respect to the liability of the defendant, is that through the email Mr. Parks was republishing the defendant’s own attacks on Mr. Pritchard’s character.

[87] In my view, the implied authorization for republication that exists as a consequence of the nature of social media, and the structure of Facebook, is not limited to republication through the social media only. Ms. Van Nes ought to have known that her defamatory statements would spread, not only through Facebook. She is liable for republication through the email on that basis.

...

[134] Aggravated damages are not in order, but given the seriousness of the allegations and the extent of the harm suffered, a significant award of general damages is. I award the plaintiff general damages for defamation of $50,000.

[135] I further find this an appropriate case for an award of punitive damages, as a means of rebuking the plaintiff for her thoughtless, reckless behaviour. She acted without any consideration for the devastating nature of her remarks. With regard to the factors enunciated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 13, a punitive damages award must be proportionate to the defendant’s blameworthiness, which in this case is high; the defendant’s vulnerability, which is also high; the harm suffered by the plaintiff, which has been considerable; and the need to publically denounce the defendant and thus bring to the notice of the public the dangers of ill-considered remarks being made in social media and the serious consequences of such conduct.

[136] I award the plaintiff additional punitive damages of $15,000.

Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 (CanLII)

[6] The allegation against Mr. McSloy is based on a single Facebook post he made on August 30, 2014. The claim against Mr. Wilson is based upon a single Facebook post he made on September 2, 2014, in response to Mr. McSloy’s post. The claim against Mr. Spencer arises out of two Twitter posts he made on September 4 and 5, 2014.

[7] The claim against Ms. McSloy is based on several statements. In early September 2014, she issued a press release through Facebook in which she stated that Mr. Armstrong had been convicted of sexual assault “many years ago”. She stated that her release of the information was not “about political campaigning or mudslinging”, but was rather because she was “concerned for [her] own safety, [her] family’s safety, as well as the safety of the residents of [her] community”. She went on to indicate that Mr. Armstrong’s conviction was part of a disturbing pattern of bullying and intimidation by him.

[8] Mr. Armstrong had in fact been convicted of sexual assault in 1987. Neither Ms. McSloy’s assertion that Mr. Armstrong had been convicted of sexual assault, nor the details surrounding that conviction, are the subject of the defamation claim. The claim focuses on Ms. McSloy’s assertion that Mr. Armstrong has shown a pattern of unethical and illegal conduct, including the sexual assault, used to bully and intimidate others.

...

[42] I turn next to the overall fairness of the Corus publications. In making this assessment, I draw on the factors identified in Grant v. Torstar Corp., at paras. 110-122. The publications clearly identify Ms. McSloy as the source of the information and opinion contained therein. The publications repeatedly emphasize the context – these were comments made by Mr. Armstrong’s political opponent in the middle of a heated election campaign. Identifying the source of the comments and the context in which they were made gives the reader valuable information when assessing the comments’ merits and goes a long way toward ensuring the fairness of Corus’s reporting.

...

[51] On a proper application of the responsible communication defence to the facts of this case, I am satisfied that the material filed by Corus put the defence of responsible communication squarely in issue. Mr. Armstrong’s material does not provide reasonable grounds to believe that Corus did not have a valid defence of responsible communication.

[52] The Corus publications did not contain any material factual errors. They presented Ms. McSloy’s explanation for disclosing Mr. Armstrong’s very dated criminal conviction in her own words. The presentation was balanced and fair. Corus neither supported nor dismissed Ms. McSloy’s explanation for the disclosure. Mr. Armstrong’s voice went unheard because he chose to decline Corus’s request for a comment. A reasonable trier on this record could not be satisfied that Corus did not have a valid defence of responsible communication.

[53] Mr. Armstrong failed to meet his onus under s. 137.1(4)(a)(ii). Corus’s motion should have been allowed and the claim against it dismissed.

Smith v. Nagy, 2021 ONSC 4265 (CanLII)

[17] In his statement of claim, Smith alleges that Nagy’s statements in the Facebook post were defamatory, false and made with malicious intent, and that he has suffered damages as a result of them. He seeks $100,000 in general damages, $50,000 in aggravated damages, $50,000 in punitive damages, and an unspecified amount of special damages for lost income and lost business opportunities. He also seeks Nagy’s public retraction of the allegations in her Facebook post and an injunction preventing her from any further publication of them.

[18] After being noted in default, Nagy served a statement of defence in December 2019. She denies that the Facebook post was defamatory. In the alternative, she states that her statements were true or substantially true, or constituted fair comment, or are protected by qualified privilege. She alleges that there was an important and substantial public interest in the Facebook post, and that Smith’s action is a Strategic Lawsuit Against Public Participation (“SLAPP”) suit. She served this motion in August 2020.

...

[30] Smith relies, in particular, on Zoutman v. Graham, 2020 ONCA 767 (“Zoutman”). In that case, a motion judge dismissed an anti-SLAPP motion because it was served after the plaintiff brought a summary judgment motion. The Court of Appeal upheld this decision, finding that “given the constellation of facts in this case, it was open to the motions judge to decline the s.137.1 relief on the basis of its timing”: Zoutman, at para. 17. Smith also cites Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at para. 9, where the Court of Appeal likewise upheld a motion judge’s discretion to determine if a s. 137.1 motion should be heard; Levant v. Day, 2019 ONCA 244 (leave to appeal to S.C.C. refused, [2019] S.C.C.A. No. 194), at para. 29, where the Court of Appeal justified a costs award against a plaintiff who brought an anti-SLAPP motion after a case was set down for trial; and the observation by Doherty J. in Pointes Protection ONCA, at para. 76, that a s. 137.1 motion “is intended to be brought at an early stage of the proceeding.”

[31] Based on this case law, a motion judge seized with an anti-SLAPP motion may decline to grant it if it has not been brought in a timely way. Section 137.2(1) provides that a defendant may bring an anti-SLAPP motion “at any time after the proceeding has commenced” A defendant is accordingly not subject to any hard and fast deadline. Late delivery of such motions should, however, be discouraged, due to their impact on proceedings and cost implications.

[32] Pursuant to s. 137.1(5), once an anti-SLAPP motion is served, “no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.” Bringing a motion can therefore delay the prosecution of the underlying action for months or even years. This is why s. 137.2(1) requires that the motion be heard within 60 days of the filing of the notice with the court. Moreover, pursuant to s. 137.1(7), if the motion is successful, the moving party/defendant is presumptively entitled to costs on the motion and the proceeding on a full indemnity basis. As the Court of Appeal has stated: “Given the serious cost consequences which can result from a successful anti-SLAPP motion, such as full indemnity costs as per s. 137.1(7), these motions should be brought early in the proceedings”: Levant v. Day, at para. 29.