Negative Posts on Social Media: When is it Defamation?

The Canadian Charter of Rights and Freedoms upholds the right to freedom of thought, belief, opinion, and expression. However, this right has limits and civil claims like defamation can also impose consequences for harmful expression.

What is Defamation?

Defamation occurs when someone makes a false statement that damages another person’s reputation and communicates that statement with a third party. With the rise of social media platforms such as Facebook, Twitter (now X), Instagram, YouTube, and others, this legal issue has taken on new dimensions. But posting defamatory content online doesn’t shield you from legal responsibility.

In the landmark case Grant v. Torstar Corp., 2009 SCC 61, the Supreme Court of Canada outlined a three-part test for proving defamation:

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1. The statement would tend to harm the reputation of the person in the eyes of a reasonable person.
2. The statement was about the complainant.
3. The statement was shared with a third party other than the complainant.

Notably, defamation is considered a strict liability tort. This means a person can be held legally responsible regardless of their intent (i.e. whether the statement was made deliberately or carelessly).

Courts are becoming increasingly well-versed in social media issues and are showing more willingness to hold people accountable for online defamation and for republishing defamatory content.

Key Legal Cases on Online Defamation

Rutman v. Rabinowitz, 2018 ONCA 80: This case involved a falling-out between former business associates. One party launched a targeted online campaign, posting false reviews and defamatory remarks such as calling Rutman a “thief” and saying he should be in jail. These comments were viewed over 5,000 times. The Ontario Court of Appeal upheld a $700,000 damage award. Particularly notable were these findings:

Paragraph 62: In libel cases, damages are presumed simply by the fact that a false statement was published — no proof of specific harm is necessary.
Paragraph 65: Just because exact reputational harm isn’t measurable doesn’t mean it didn’t occur.
Wilson v. Wilson, 2019 ONSC 5726: During a separation, defamatory Facebook posts accused the plaintiff of incest, theft, and other serious misconduct. The court awarded $15,000 in general damages.

Duncan v. Buckles, 2020 ONSC 3219: A property dispute turned into a defamation case when one party enlisted help to publish negative content via blogs, YouTube, and online petitions. The third party accused the plaintiff of being “a liar and a bit of a nut case.” The court ordered $70,000 in damages.

If a statement is factually accurate, it isn’t defamatory, even if it’s damaging.

Paramount v. Kevin J. Johnston, 2019 ONSC 2910: Johnston used various online platforms to spread claims that the plaintiffs were linked to terrorism. These accusations led to the loss of a significant overseas business deal. The court awarded $2.5 million in damages, recognizing the substantial economic harm caused by the defamatory attacks.

Defences Against Defamation

Not every negative statement counts as defamation. Common defences include:

Truth: If a statement is factually accurate, it isn’t defamatory, even if it’s damaging.
Fair Comment: Opinions, especially those on matters of public interest, are protected if expressed honestly.
Absolute Privilege: Certain settings, like court proceedings or parliamentary debates, offer full immunity for statements made.
Qualified Privilege: Statements made without malice for a legitimate purpose may be protected, such as in performance reviews or complaint letters.

What to Do if You’re Defamed

If someone has made defamatory remarks about you online or elsewhere, consider the following steps:

1. Act quickly to limit the spread of the false information.
2. Gather proof — take screenshots, print posts, and store evidence securely.
3. Consult a legal professional who specializes in defamation law.
4. Send a cease-and-desist letter requesting removal, retraction, and an apology.
5. Publicly respond if appropriate, clarifying your side of the story.
6. Ignore it, if the statement lacks traction and is likely to fade quickly.
7. Pursue legal action, as a last resort, understanding that litigation is costly and emotionally taxing.

Final Thoughts

Before posting a harsh opinion or unverified accusation online — especially about someone in your personal or professional circle — pause and reflect. Defamatory comments can have serious legal and financial consequences. Social media may feel casual, but the law treats it seriously.

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Catherine Willson, a lawyer who has practised litigation for over 30 years, founded the law firm True Law Legal Services in Toronto, ON, in 2022. This article contains general information only, based on the laws of Ontario and is not intended to provide a legal opinion or advice. Readers should consult a lawyer with respect to the application of the information contained above to their particular circumstances.