Introduction
Defamation is defined as communication about a person that tends to hurt their reputation. These communications cause people to think less of the subject of defamation.
To count as defamation, a person must have made the statement to others (meaning that private statements do not constitute defamation). Spoken defamatory statements are considered slander, while written ones are known as libel.
This article will look at a specific aspect of defamation that is especially relevant today, namely, the situation of online libel/harassment. We will explore:
- The general legal aspects of defamation law in B.C.
- What online defamation is
- Defences against a defamation lawsuit
Defamation law in B.C.
To be successful in a defamation claim, the claimant must show that the communication made by the accused meets the following three requirements:
- The communication was defamatory (meaning it would lower the reputation of the claimant in the eyes of a reasonable person),
- The communication referred to the claimant, and
- The communication was communicated to at least one other person.
The jurisprudence in British Columbia leads to the conclusion that personal insults, which only injure the claimant’s pride, do not satisfy the test.
In British Columbia, the claimant must bring their lawsuit in the B.C. Superior Court –not to the Provincial Court—within the limitation period of two (2) years. This means the action must be served and filed within two years from the defamatory statement’s date.
Posting defamatory statements and harassing on social media
There are certain seminal cases which highlight the basic principles of online libel and slander, including the use of social media.
The case of Levant v Day (2017) involved several tweets that were defamatory in nature. The court concluded that the majority were ‘thinly veiled attacks’; however, some were more serious and warranted damages to the plaintiff. Essentially, the court established that libelous comments made as tweets do indeed constitute defamation in a legal sense. The court also stated that there was no defence of fair comment available.
There was also the case of Nanda v McEwan (2019), in which the Divisional Court held that the issue of whether WhatsApp communications constituted a ‘broadcast’ within the meaning of s.5(1) of the Ontario Libel and Slander Act should not be determined summarily. Although the two cases above are from Ontario Courts, their rulings have been referred to in British Columbia law, specifically in situations involving defamation.
Posting defamatory statements and harassing on social media
There are certain seminal cases which highlight the basic principles of online libel and slander, including the use of social media.
The case of Levant v Day (2017) involved several tweets that were defamatory in nature. The court concluded that the majority were ‘thinly veiled attacks’; however, some were more serious and warranted damages to the plaintiff. Essentially, the court established that libelous comments made as tweets do indeed constitute defamation in a legal sense. The court also stated that there was no defence of fair comment available.
There was also the case of Nanda v McEwan (2019), in which the Divisional Court held that the issue of whether WhatsApp communications constituted a ‘broadcast’ within the meaning of s.5(1) of the Ontario Libel and Slander Act should not be determined summarily. Although the two cases above are from Ontario Courts, their rulings have been referred to in British Columbia law, specifically in situations involving defamation.
Posting fake negative reviews
Under section 2(b) of the Charter of Rights and Freedoms, posting reviews is fully protected in Canada. However, the freedoms in the Charter are not necessarily absolute. There are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” One of these reasonable limits is a restriction on propagating fake information, including to a newspaper and online. Specifically, a business can sue a defamer if it can prove that such a person’s review constitutes defamation (which is a criminal act under section 298 of the Criminal Code).
- Libelous comments made as tweets do indeed constitute defamation in a legal sense
- A business can sue a defamer if it can prove that such a person’s review constitutes defamation
The negative impact of online defamation
Numerous adverse effects can result from online defamation, regardless of whether this defamation is slander or libel:
- Loss of a job and/or the loss of income: some employers may complete pre-screening background checks that include social media profiles and activity of the job applicant. Therefore, comments, pictures, or videos made by you or linked to you may cause the employer to believe you are not a good fit for the company.
- Online humiliation: although most people tend to think that what they read or see online is not too damaging to a person’s feelings, the reality is that being the victim of public disparaging or ridicule can devastate a person’s life. Sometimes, the damage is permanent, as no reparations or explanations can erase the associations thus created. Also, there may be legal consequences.
- Loss of business and professional reputation: building a business is not easy, and it takes many hours, days, and years of effort for a business owner to nourish profitable relationships for their company. Online defamation can ruin these relationships with blinding speed. Even if the owner proves such allegations are false, there is usually a certain amount of permanent and irretrievable damage that can lead to a significant monetary loss.
What damages can be awarded?
Suppose a plaintiff brings a defamation lawsuit, including an action for online defamation, and the defendant is not successful in their defences. In that case, the court may award damages for any of the adverse effects spoken about above. These are often called ‘general damages.’
General damages depend on numerous factors, including but not limited to:
- the plaintiff’s position and standing in the community,
- the seriousness of the defamation,
- the mode of publication,
- the absence or refusal of an apology, and
- the conduct of the defendant from the time the defamatory statements were made.
In addition to the general damages already mentioned, ‘special damages’ can be awarded when there is a financial loss. However, the claim will only be successful if the plaintiff can prove the defamatory statements caused the income loss.
Furthermore, if it can be proven that the defendant made their defamatory statements with malice, the plaintiff may, in addition to the damages above, be entitled to punitive damages.
General damages depend on numerous factors, including but not limited to:
- the plaintiff’s position and standing in the community,
- the seriousness of the defamation,
- the mode of publication,
- the absence or refusal of an apology, and
- the conduct of the defendant from the time the defamatory statements were made.
Defences to a claim of online defamation
- The most prominent defence to a defamation claim is “truth” (or justification). Specifically, this defence alleges that the statement made is, in fact, true. This defence stems from common sense. If a statement is true, it does not make sense to punish the issuer of the statement for revealing such truth.
It becomes especially important in the online context, as the information reaches an audience’s eyes much more quickly than at any other time in history. The onus is on the defendant to prove that the defamatory meaning conveyed by the expression was true in substance. Note that this defence applies even if the defamatory statement was made with actual malice.
- Another defence is that of “fair comment.” Essentially, the defendant has the onus of proving that the defamatory statement made was an opinion and was not made as a statement of fact. The defendant must also prove that a person could have honestly expressed the defamatory statement on the proven facts. However, this fair comment defence can be defeated if the plaintiff proves that the defendant acted with express malice.
- In common law, there is another defence called ‘qualified privilege,’ which involves situations where the public interest in free speech trumps the public and private interest in protecting an individual or corporate reputation. One example where this defence applies is when the defendant has an interest or a duty to communicate such a statement, and its recipients have a corresponding duty or interest to receive such communication.
- There are numerous other defences, however. The ones mentioned above are the most prominent regarding defamation on an online platform.
Conclusion
Overall, whether a defamatory statement occurs in print or online, it can have negative and sometimes devastating effects on a person’s reputation, business, and income. Therefore, online defamation is treated seriously. Most of the information we receive comes from online sources. We should be mindful of the laws that apply to defamatory statements on a website or social media.
Also, it pays to be cautious when posting comments and reviews online. Remember that there can be consequences to what you said and that sometimes comments taken out of context can be used with meanings you did not intend. We hope that awareness of the available defences can help you should you find yourself the unhappy subject of a defamation claim.
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