The Canadian Charter of Rights and Freedoms guarantees the right to “freedom of thought, belief, opinion and expression,” however, this freedom is not absolute. Some expression is illegal (hate speech, perjury) and civil tort defamation may also make you need to watch your words.
Defamation is defined as untrue statements made by an individual that are harmful to someone else’s reputation and are shared with a third party. In the age of the internet troll, defamation through social media (Facebook, Twitter, YouTube, Instagram, Snapchat, Tumblr, etc.) is a problem. Individuals feel more liberated to say what they are thinking while hiding behind a computer screen or cell phone.
Just because you say it through social media does not mean you are free from liability for defamatory statements. The Supreme Court of Canada in Grant v. Torstar, 2009 SCC 61, established that the legal test for defamation is:
- The words disseminated would lower the complainant’s reputation in the eyes of a reasonable person;
- The words referred to the complainant; and
- The words were published or communicated to a third party, not just to the complainant.
Defamation is a strict liability tort, meaning the defendant is liable regardless of whether his or her statements were made negligently or intentionally. The courts are becoming more familiar with the world of social media and are more willing to hold individuals accountable for their online comments and the republication of those comments by others.
Not all defamation claims are successful. Some common defences used to justify harmful comments are:
- Truth: the truth, even if it is the ugly truth, is not defamatory.
- Fair comment: a statement of opinion is not defamatory.
- Absolute privilege: statements made in parliament, at trial, or in court documents.
- Qualified privilege: statements made without malice and for an honest and well-motivated reason.
If you are a victim of defamatory comments, there are a few things you can do:
- Act fast. Deal with the issue head-on and try to have the defamatory statement removed before it spreads.
- Obtain evidence. Screenshot, print, and save evidence of all postings relating to the defamatory material.
- Seek expert advice. You may wish to seek the help of an experienced defamation lawyer.
- Send a cease and desist notice. Send a letter requesting that the defamatory statement be removed, retracted, and an apology made.
- Refute the statement. Make a statement of your own providing your side of the story and refuting the defamatory statement made.
- Ignore it. If it is something that will quickly be forgotten, don’t fuel the fire.
- Sue. This should be the last option, as litigation is emotionally draining, uncertain, and expensive.
So the next time your fingers get itchy when you’re on your social media accounts, take a step back and think before you post something negative about that trainer, rider, or boarding stable – or it may come back to haunt you.