KPA Lawyers - February 21, 2019
As the old saying goes, “a lie can travel halfway around the world while the truth is still putting on its shoes”, commonly misattributed to Mark Twain. It turns out the quote is more likely a modern paraphrasing of a line published hundreds of years ago by the satirist Jonathan Swift.
But neither of these gentlemen lived in our highly connected world of social media, where careless or malicious tweets and comments can quite literally travel around the world instantaneously. Furthermore, the average user’s number of Twitter followers only seems to be increasing with time.
So can a person in Ontario be sued for defamation on Facebook or Twitter in Ontario? The short answer is yes, but the long answer is it’s complicated.
There are two types of defamation in Ontario: slander (spoken) and libel (written). To prove defamation, a plaintiff must prove all of the following on a balance of probabilities:
- 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;
- that the words in fact referred to the plaintiff; and
- that the words were published, meaning that they were communicated to at least one person other than the plaintiff
There is no requirement upon the plaintiff to prove that the defendant actually meant to do any harm, or that the allegedly defamatory comments were false or caused damage.
If the plaintiff can establish the above three points, then it is up to the defendant to present an effective defence.
There are a number of exceptions and defences in cases of defamation that could result in the lawsuit being dismissed. Whether you’re considering launching such a lawsuit or you’ve been sued for defamation, you should understand these nuances.
The most common defences to a defamation lawsuit are as follows:
- truth (known as justification)
- absolute privilege
- qualified privilege
- fair comment
- responsible communication on matters of public interest
- innocent dissemination
In this article, we’ll focus on issues concerning social media, and the protection of freedom of speech laws.
Anti-SLAPP Legislation Laws have been introduced within and outside of Ontario to balance the following two competing rights:
1) the right of a party to defend his or her reputation against defamation, and
2) the protection of freedom of expression, particularly on matters of public interest.
Such laws are often referred to as “strategic lawsuits against public participation” (or “anti-SLAPP”). Such lawsuits are recognized to be attempts to use the Courts to silence criticism. However, even if a defendant can demonstrate that he or she was commenting on a matter of public interest (not to be confused with something that merely interests the public), the case won’t be dismissed if the Court believes that there are grounds to believes all of the following three points:
(a) the plaintiff’s case has substantial merit
(b) the moving party has no valid defence in the proceeding, and
(c) the harm likely to be (or have been) suffered by the plaintiff is sufficiently serious that the public interest in permitting the case to continue outweighs the public interest in protecting the expression.
Strict Procedural Deadlines for “Broadcasts”
Please note that the deadlines described below do not apply to these types of privacy lawsuits, which often apply to lawsuits involving posts on social media. Even if you miss one of the deadlines described below, you might still be able to take advantage of one of the privacy torts mentioned in the linked video above.
The law of defamation in Ontario is governed by Ontario’s Libel and Slander Act (“LSA”), and it contains strict deadlines that, if missed, can result in a dismissal of a plaintiff’s lawsuit. However, given how old the LSA is and the fact that it hasn’t been updated to reflect the age of social media, lawyers and judges have been met with some confusion regarding how to interpret some of sections of the LSA.
Specifically, section 5(1) of the LSA states as follows:
“No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.” (bold added)
Section 6 goes on to state:
“An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.”
In plain English, if you think you’ve been defamed in a newspaper or “broadcast” then you’ll have to formally serve a notice-letter on the defendant within 6 weeks, and file your lawsuit within three months.
If the above doesn’t apply, then the standard deadline to bring a lawsuit, without the necessity of any notice-letter, is two years from the date the plaintiff learned of the defamatory words.
But what constitutes a “newspaper” or “broadcast” in modern times? Would include an online blog? A message sent on a WhatsApp chat group? Tweet? Facebook post?
The Court noted a number of findings in its analysis:
1) Emails are not “broadcasts” and are not subject to the strict deadlines mentioned at sections 5 and 6 of the LSA. According to Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 CanLII 19660 (ONCA) at paragraph 6, the court states, “allegedly defamatory e-mails… are neither a broadcast or a newspaper and the s. 5(1) notice requirement does not apply to them…”
2) “Online newspapers” are newspapers under the LSA and, therefore, subject to the strict deadlines mentioned at sections 5 and 6 of the LSA. Similarly, where radio broadcasts are also distributed over the internet, they remain a “broadcast” within the meaning of the LSA.
3) Twitter and Facebook posts (and WhatsApp messages) are not necessarily “broadcasts” under the LSA, and a definitive answer remains unclear. In the case of Levant v. Day, 2017 ONSC 5956, the Court stated that,
“The legislative provision in the Act refers to libel in a newspaper or in a broadcast. There is no case law that interprets this provision to include social media. The defendant asks this Court to extend the Libel and Slander Act which uses these words and was originally intended to apply the media of the times to a new telecommunication technology. The defendant seeks to have this Court extend “broadcast” to social media such as Twitter.
However, the parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter. The Court is not prepared to take judicial notice of these things. This Court is not prepared to make such a determination absent such evidence.”
The main takeaway regarding sections 5 and 6 of the LSA is that plaintiffs are better off following the strict deadlines prescribed in the LSA for cases involving defamation via WhatsApp, Facebook or Twitter, but the doors may not be entirely closed if such deadlines were missed.
Have more questions?
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