Defamation in the Digital Age: A Primer to Social Media, Free Speech and Liability issues in Canada

Agatha Wong of WeirFoulds' essential review of defamation in Canada and what it means for cyberspace

Fake news, keyboard warriors, and online anonymity. These are some of the many factors that have contributed to the mounting challenges faced by individuals who have seen their reputation impugned on social media. Canada’s defamation laws are supposed to protect people against slander and libel, but they are increasingly outmoded as communications move towards digital media rather than traditional print and fora. We asked Agatha Wong of WeirFoulds LLP for her insights into Canada’s defamation standards and the difficulties faced by individuals seeking to protect themselves against online attacks. 

What is the legal standard in Canada for proving defamation?

Canadian defamation law seeks to strike a balance between free speech and the protection of individual reputation. Defamation can involve oral statements (slander) or written statements (libel).

Some may be surprised to learn that the legal standard for proving defamation is not a very high one. In all Canadian jurisdictions except for Québec, a plaintiff can prove defamation by establishing just three elements:[1]

  1. The statement refers to the plaintiff.
    • If the publication does not explicitly name the plaintiff, then the plaintiff must be reasonably identifiable. For instance, a defamatory article might not use the plaintiff’s name, but it might refer to their job title or family relationships in a way that identifies them.
       
  2. The statement was published or disseminated to a third party.
    • The statement must have been made to at least one another person other than the plaintiff.
       
  3. The statement is defamatory.
    • A statement is defamatory if it would tend to lower the reputation of the plaintiff in the eyes of a reasonable person.

If the plaintiff establishes these three elements, the defamatory statement is presumed to be false, and the plaintiff is presumed to have suffered damages as a result of the defamatory statement.

In Québec, defamation is established by proving the elements of general civil liability under article 1457 of the Civil Code of Québec. Those elements are 1) fault (by the defendant), 2) injury (suffered by the plaintiff), and 3) a causal link between the fault and injury.

What are some of the defences that can be used against such a claim?

If the plaintiff establishes the elements of defamation, the burden shifts to the defendant to raise a valid defence.

In common law provinces in Canada, the following are defences to defamation:

  • Truth: As stated above, if the plaintiff establishes the three elements of defamation, the defamatory statement is presumed to be false. It is up to the defendant to prove that the statement is indeed true. The defendant must provide evidence that the “sting” of the defamation (the negative meaning conveyed by the defamatory statement) was substantially true.[2]
  • Absolute Privilege: There are specific situations in which individuals must be able to speak freely, so the law grants immunity from defamation suits in those contexts. For instance, individuals cannot be sued for statements made during judicial or quasi-judicial proceedings. Absolute privilege also applies to statements made during legislative debate.
  • Qualified Privilege: The defence of qualified privilege applies to situations where a speaker has a legal, social, or moral duty or interest to make a communication to a recipient, and that recipient has a corresponding interest or duty to receive that communication. For example, employers have a duty to provide frank and honest references regarding current and former employees. Prospective employers have a corresponding interest in receiving candid references. Therefore, Ontario courts have indicated that employment references are an occasion of qualified privilege.[3] Qualified privilege also protects complaints to the police and communications between doctors and their patients.

As its name suggests, qualified privilege is not absolute. A plaintiff can defeat the defence of qualified privilege if they can prove that the defendant’s dominant motive for publishing or making the defamatory statement was malice or that the defendant exceeded the limits of their duty or interest.[4]

  • Fair Comment: A defendant can argue that their defamatory statement amounts to fair comment if four criteria are met:
     
    • The statement was on a matter of public interest.
    • The statement was based on facts that were either included in the publication or known to readers.
    • The statement is recognizable as comment (as opposed to objective recital of fact).
    • The comment must satisfy the following objective test: could any person honestly express the opinion on the proved facts?[5]

Even if the defendant satisfies these four criteria, the plaintiff can defeat the defence of fair comment by proving that defendant was motivated by malice in making the comment.

  • Responsible communication on matters of public interest: A more recently recognized defence, responsible communication allows journalists and media outlets to defend libel cases where they have made false statements in their reporting without knowing those statements to be false. Journalists can rely on this defence if they satisfy two requirements. First, the story or report must have been on a matter of public interest. Second, the publication of the false and defamatory statements was responsible. When determining whether publication was responsible, the court will consider various factors, including:
     
    • seriousness of the defamatory statement
    • public importance of the matter
    • urgency of the matter
    • status and reliability of the sources on which the journalist relied
    • whether the journalist sought and reported the plaintiff’s side of the story
    • whether the inclusion of the defamatory statement was justifiable
    • whether the statement’s importance lay in the accuracy or the fact that it was reported.[6]

Defences in Québec

Québec civil law does not have list of specific defences to defamation. Instead, the question is whether the elements of civil liability under article 1457 of the Civil Code of Québec have been made out. Defamation cases will often turn on whether the defendant has committed a fault in making the allegedly defamatory statement. A defendant can rely on all circumstances that tend to demonstrate the absence of fault. In so doing, a defendant might cite circumstances that resemble the criteria of a common law defence, such as fair comment. However, a Québec court will not strictly apply the test for fair comment and will instead broadly examine all relevant circumstances to determine the presence or absence of fault.[7]

Defence that Claim is Time-barred

A defendant may defend a defamation action on the grounds that the plaintiff’s claim is out of time. All Canadian jurisdictions except for British Columbia and New Brunswick have defamation statutes requiring plaintiffs who want to sue for defamation in a newspaper to give the defendant prior notice of the lawsuit by delivering a document known as a libel notice. Generally speaking, a libel notice sets out or describes the statements that the plaintiff believes are defamatory. Except in Québec and Saskatchewan, prior notice is also required when a plaintiff wants to sue for defamation made during a broadcast.[8]

The amount of prior notice required varies by province and territory. For instance, in Ontario, a plaintiff must deliver their libel notice within six weeks of learning of the defamation, whereas a plaintiff suing in an Alberta court has three months to serve their notice after the defamation has come to their knowledge. If a plaintiff fails to serve their libel notice within the prescribed time period, they are barred from bringing an action in defamation.

In addition to complying with deadlines for delivering libel notices, plaintiffs should be careful to comply with statutory limitation periods for commencing a lawsuit. For example, in Ontario, the Libel and Slander Act[9] requires a plaintiff to commence an action for libel in a newspaper printed and published in Ontario or in a broadcast from a station in Ontario within three months of the defamation coming to the plaintiff’s knowledge.

How has the rise of social media affected defamation suits?

Canadian defamation law was originally developed to address traditional modes of media, such as print media, radio, and television. Defamation statutes were therefore drafted with newspapers and broadcasters in mind. The rise of social media has forced Canadian courts to address novel issues, including potential liability of social media platforms for defamation by its users, anonymous authors, and applicability of limitation periods to online content.

Liability of Internet Intermediaries

In Canadian defamation law, those involved in the publication of defamatory statements are liable in their capacity as publisher. In the traditional example of a newspaper, a person who has been defamed by statements in an article may sue both the author of the article and the publisher of the newspaper.

But what happens when the defamatory statements were made on the Internet? If someone posts defamatory remarks on Twitter under an alias, the plaintiff might have difficulty pursuing the anonymous person behind the defamatory tweets. Could the plaintiff hold Twitter liable as publisher? Could Internet service providers (ISPs) be considered a publisher since they allow defamatory remarks to be transmitted to Internet users (i.e., members of the public)?

In the still-developing law of online defamation, owners/operators of online forums, social media platforms, and ISPs are often referred to as third party intermediaries or Internet intermediaries. To determine whether an Internet intermediary should be held liable as publisher, the court will consider the intermediary’s knowledge of the defamatory comments, its deliberate action or inaction, and the extent of its power and control over the defamatory comments.[10]

If an intermediary was reasonably unaware of the defamation, more often than not it will be considered a “passive instrument” or “innocent disseminator” of the defamatory statements and will not be held liable for the publication of those statements.[11]

ISPs have been regarded as passive instruments and will generally be shielded from liability for online defamation.[12]  Canadian courts have expressly held that the mere act of hyperlinking to a webpage that contains defamatory statements does not amount to publication of those same defamatory statements.[13] The person or platform hyperlinking to the defamatory webpage will be considered an innocent disseminator, unless when introducing the hyperlink, they make comments adopting or endorsing the defamatory content being hyperlinked to.[14]

By contrast, if the plaintiff complains to an intermediary about defamatory statements posted on its platform, the intermediary will be on notice of the defamation. If the intermediary does not take action (e.g., by removing the comments) within a reasonable period of time, it risks being regarded as a publisher of the defamatory comments and may attract liability.[15] For example, in Baglow v. Smith, the operators of a message board refused a request by the plaintiff to remove a comment that the plaintiff considered defamatory of him. The Superior Court of Justice of Ontario found that the operators could be held liable as publishers. The court noted that the operators acted as moderators of the message board and had the power to delete posts and comments. [16] 

Anonymous Authors

The advent of the Internet has allowed individuals to write blogs, post comments, and generally express themselves anonymously or under pseudonyms. What can you do if you are being defamed online but do not know the identity of the person doing the defaming?

Plaintiffs are increasingly asking courts for a remedy known as a Norwich order, namely a court order compelling a (usually innocent) third party to produce information about a wrongdoer or defendant. In the case of anonymous Internet libel, a plaintiff can seek a Norwich order requiring an Internet intermediary, such as an ISP or social media platform, to disclose the identity of the anonymous poster. With this information, the plaintiff can commence a lawsuit against the anonymous author.

To obtain a Norwich order, the plaintiff must satisfy the following criteria:[17]

  1. The plaintiff has provided evidence sufficient to raise a prima facie defamation claim (a case that is sufficient at first impression);
  2. The intermediary is somehow involved in the defamatory statements complained of;
  3. The intermediary is the only practicable source of the information available;
  4. The intermediary can be indemnified (compensated) for costs to which it may be exposed because of the disclosure; and
  5. The interests of justice favour obtaining the disclosure.

Applicability of Notice Periods

The law is unsettled as to whether the notice and limitation periods in Canadian defamation statutes apply to online defamation.

The statutory limitation periods apply to defamation in a “newspaper” or “broadcast.” The question is whether statements made online can be characterized as statements made in a newspaper or broadcast. For instance, could an online news site be considered a newspaper? Is an Instagram live a broadcast?

The Court of Appeal for Ontario has found that the six-week notice period under section 5(1) of the Libel and Slander Act[18] applies to the online version of a traditional print newspaper.[19] Similarly, radio broadcasts made available online also fall within the meaning of “broadcast”[20] and are subject to statutory notice and limitation periods.

It remains to be seen, however, whether notice periods would apply to statements made on social media platforms, blogs, or purely online news sources with no brick-and-mortar office. To date, Ontario courts have been reluctant to state definitively that statutory notice and limitation periods apply to online defamation but have not ruled it out.

Conclusion

The law on online defamation continues to grow and evolve. Policymakers appear to be increasingly aware of the need to reform and modernize this area of law,[21] while Canadian courts continue grapple with how to strike an appropriate balance between free speech and protection of reputation in an age of digital and social media.

***

Agatha Wong is an associate in the Commercial Litigation Practice Group at WeirFoulds. Her practice focuses on media, defamation, and aviation law. Agatha graduated from the McGill Faculty of Law in 2018 and was called to the bar in 2019.

[1] Grant v, Torstar Corp., 2009 SCC 61 at para 28.

[2] Bent v. Platnick, 2020 SCC 23 at para 107.

[3] Kanak v. Riggin, 2017 ONSC 2837 at paras 26-30, aff’d in 2018 ONCA 345, leave to appeal denied Tracey Kanak v. Darryl Riggin, 2019 CanLII 1628 (SCC).

[4] Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 at paras 143-47.

[5] WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para 28.

[6] Grant v. Torstar Corp., 2009 SCC 61.

[7] Prud'homme v. Prud'homme, 2002 SCC 85 at para 63.

[8] Defamation Act, R.S.A. 2000, c. D-7, ss. 12, 13; Defamation Act, C.C.S.M. c. D-120, ss. 13, 14; Defamation Act, R.S.N.L. 1990, c. D-3, ss. 15, 16; Defamation Act, R.S.N.S. 1989, c. 122, ss. 17, 18; Defamation Act, R.S.N.W.T. 1988, c. D-1, ss. 14,15; Defamation Act, R.S.Y. 200, c. 52, ss. 13, 14.

[9] R.S.O. 1990, c. L.12, s. 6; Libel and Slander Act, R.S.O. c. L.12, s. 5(1); Defamation Act, R.S.P.E.I. 1988, c. D-5, s.14; Press Act, CQLR, c. P-19, s. 3; Libel and Slander Act, R.S.S. 1978m c. L-14, s. 15.

[10] Pritchard v. Van Nes, 2016 BCSC 686 at para 108.

[11] See e.g. Crookes v. Newton, 2011 SCC 47; Carter v. B.C. Federation of Foster Parents Assn., 2004 BCSC 137, rev’d on other grounds 2005 BCCA 398.

[12] Emily B. Laidlaw & Hilary Young, “Internet Intermediary Liability in Defamation” (2019) 56:1 Osgoode Hall Law Journal 112 at 121; Crookes v. Newton, 2011 SCC 47 at para 89.

[13] Crookes v. Newton, 2011 SCC 47; Carter v. B.C. Federation of Foster Parents Assn., 2004 BCSC 137, rev’d on other grounds 2005 BCCA 398.

[14] Crookes v. Newton, 2011 SCC 47 at paras 48-50.

[15] Warman v. Fournier, 2015 ONCA 873 at para 20; Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398 at para 21.

[16] Baglow v. Smith, 2015 ONSC 1175 at para 195-96. Although the operators could be considered publishers of the defamatory comment, they successfully defended the lawsuit on the grounds of fair comment.

[17] York University v. Bell Canada Enterprises, 2009 CarswellOnt 5206 at para 12.

[18] R.S.O. 1990, c. L.12.

[19] John v. Ballingall, 2017 ONCA 579.

[20] Nanda v. McEwan, 2019 ONSC 125 at para 75.

[21] See e.g. the Law Commission of Ontario’s Defamation Law in the Internet Age project: https://www.lco-cdo.org/en/our-current-projects/defamation-law-in-the-internet-age/

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