Defamation and SLAPPs

Defamation is the unjust harming of another's reputation by libel or slander. Libel is defamation in a fixed medium (such as a written story, a cartoon, a videotape, etc.), while slander is of an oral nature (spoken words).

Someone alleging defamation must prove three things:

1. That the words used by the defendant were "defamatory";
2. That the words referred to the plaintiff; and
3. That the words were published to a third party.

In three provinces (Ontario, British Columbia, and Saskatchewan), libel and slander actions are treated differently from each other. In these provinces, the plaintiff in a libel case does not need to show that he has suffered any losses that can be exactly quantified at the time that the trial starts; whereas the plaintiff in a slander case, must prove such a loss to be able to sue, except in four cases (related to work or business, accusations of criminal offences, imputations of diseases, and unchastity of a woman). This difference in treatment between the two actions has been abolished in the other provinces.

Both corporations and individuals can sue, or be sued, for defamation. However, it has recently been confirmed that municipal corporations (municipalities) cannot sue for defamation. (Halton Hills (Town) v. Kerouac, 2006 CanLII 12970 (ON S.C.)) This does not imply that individual city councilors cannot sue for defamation on their own behalf using their own funds.

Defamatory words are statements that, in the eyes of a reasonable person, discredit the plaintiff.

Speaking of the "reasonable man," Canadian courts have said:

"...He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard 'adopted in the community by persons of ordinary intelligence and prudence' " (Arland v. Taylor, [1955] 3 D.L.R. 358 (Ont C.A.))"

"A reasonable person will generally refrain from giving out unfavourable information about other people if he or she has reason to doubt the truth of the information." (Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663 at para. 36)

When the law says that the words must be discrediting, it means that they must somehow harm, injure, disparage or adversely affect a person's reputation. The Court will apply an objective test here, that is, the statement is judged by the standard of a reasonable reader or listener.

Once the defamatory character of the statement is established, the Court will presume that the words are false. It is up to the defendant to establish that they are true. Minor inaccuracies will not count if the words are essentially true. In other words, a plaintiff will not win by nitpicking. (See "What is justification?", below.)

It is therefore a good idea for anyone publishing material that discredits another person to keep copies of any evidence that could help to establish the truth of the statements. Such evidence will also show that you took steps to verify the truth of the statements should you ever be sued.

Plaintiffs in a defamation case must prove that the words refer to them, either directly or by reasonable implication. The document need not identify them by name in order to be considered defamatory, but it must refer to them. The court will look at all the circumstances surrounding the publication in order to determine whether this element is proven.

To establish the tort of defamation, a plaintiff must establish that the defamatory words were "published". This does not mean printed in a public document; rather, the law simply requires the words were communicated to a person other than the plaintiff. Posting defamatory material on a website or newsgroup constitutes publication, as does sending a letter or email to another person. Posting a hyperlink on a website to another website that has posted defamatory material does not constitute publication unless this hyperlink clearly indicates that it is referring to a defamatory statement on another website. (Crookes v. Wikimedia Foundation Inc. 2008 CanLII 1424 (BCSC))

Various defences are available to people who are accused of defamation. A defendant to a defamation lawsuit can succeed by proving any of the following:

1. Justification (i.e., truth),
2. Consent,
3. Absolute privilege,
4. Qualified privilege (and lack of malice),
5. Fair comment (and lack of malice), and
6. Innocent dissemination, and
7. Responsible journalism.

"Justification" refers to truth of the statement. In Canadian common law provinces, truth is a complete defence to defamation. This is not the case in some Australian states, South Africa, and some US states.

This is also not the case in Québec where the Supreme Court confirmed in 2004 that it was possible to tell the truth and still be liable for defamation (Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec, [2004] 3 S.C.R. 95.) In Quebec, the truth or falsity of a statement is not conclusive because what is essential is the existence or absence of a fault.  A fault in Québec civil law is loosely defined as behavior that strays from how a person should normally behave towards others. Even if the statement is true, the way in which the statement is made can still constitute a fault. In Néron, the court found that the CBC had  committed a fault because a report gave incomplete information and resembled more a "settling of accounts" than an unbiased account.

In Canadian common law provinces, were truth is a complete defense, the plaintiff gets a head start because the law presumes that the words are false, but a defendant who can prove that they are true will be exonerated.

Note that believing that a statement was true is not a defence. Those who publish statements will be held responsible for them.

Also note that minor errors will not falsify a statement. Rather, the court will look at the totality of what was said, to determine if it is substantially true.

If the defendant has proven that the plaintiff has earlier consented to the posting of the words, then the defendant will be exonerated.

There are no formal waivers that need to be signed, since consent can be implicit. This would of course become a matter of proof. If you get consent in writing, hang on to that piece of paper!

Of course the usual legal exceptions apply here: consent will not be valid if it is obtained by fraud, duress or coercion.

"Absolute privilege" is a very broad and powerful defence to defamation. It relates to various kinds of official communications, such as talks between high public officials, speeches in Parliament, and any communications exchanged during court cases by any participant. To qualify for absolute privilege, the communication must have been made in the context of the official's function.

"Qualified privilege" applies when greater harm would come from the restriction of free speech than from the damages suffered by the plaintiff. Note that this defence can apply even when the words are clearly false and defamatory.

There are no simple rules as to the scope of this defence. Qualified privilege arises when social policy calls for us to protect and encourage certain types of communications. The law in this matter is neither well settled nor clear. Readers wishing a more thorough discussion should refer to the books listed in the "Resources" section, below, or should consult a lawyer familiar with this area of law.

A defence of qualified privilege is less likely to succeed where:

• The accusations pertain to a very serious matter, and the harm to the plaintiff outweighs the public interest in receiving the communication;
• The information was not verified, and the plaintiff did not have a chance to respond to the allegations before they were published;
• The tone of the publication was more sensational than restrained and moderate;

A defence of qualified privilege is more likely to succeed where:

• The communications were made to protect the defendant's or another person's property or safety;
• The communications were made to protect community interest, or the public.

These factors are by no means exhaustive, and both defendants and plaintiffs will need to argue the specifics of their situation.

Also note that to be able to use this defence, the defendant cannot have acted with malice. Malice may be established by showing that the defendant knew the statement was false or acted in reckless disregard of whether the statement was true or false. If the plaintiff can prove that the words were published with malice, this defence will not apply.

Finally, plaintiffs may also argue that the privilege should not apply in their case because the information was communicated to a greater number of people than required, e.g., a website which is available to all members of the public, and not just to a particular group of people.

"Fair comment" applies to statements of opinion, as opposed to fact. This defence is based on the fundamental right of free speech, and in particular, the right of everyone to express their opinion.

The "fair comment" defence is limited to matters of public interest, and does not apply if the comment was made with malice. The statement must be recognizable as a comment or opinion and cannot be a factual statement. It must however be based on facts and the comment must be one that could have been honestly expressed from these facts. (WIC Radio Ltd. v. Simpson, 2008 SCC 40) The "fair comment" defence will have little chance of success if there are no facts to support the comment.

As a general rule, all those who are responsible for publication of a defamatory statement can be held liable for it. This could include the owner of the website, the people who edit it, and those who author the content. However, those who only participate in a purely mechanical way in the distribution may be exempt from being sued. This could include an Internet Service Provider who does not know of the material that is being published through its service. Innocent disseminators will not be liable provided they were not negligent in not knowing the material contained a libel.

In Canada, the defence of innocent dissemination in relation to Internet postings has, to date, not been well developed. Other countries like the United States and the United Kingdom have passed legislation in order to address the position of ISPs in Internet defamation cases. In the U.S., s. 230 of the Communications Decency Act has been interpreted very broadly by the courts so as to protect ISPs from incurring any liability in regard to material taken from other sources which is carried on their services. In the U.K, the Defamation Act, 1996, helped to clarify the defence of innocent dissemination for ISPs

For a defendant to succeed using the defence of innocent dissemination, he must prove that he had no knowledge that the publication contained defamatory matter.

If the defence succeeds, plaintiffs will not be awarded any damages from the ISP who posted the defamatory statements.

The responsible journalism defence was only recently confirmed in Canada by the Ontario Court of Appeal (Cusson c. Quan, 2007 CanLII 771 (ONCA)). For this defence to succeed, a journalist or "media defendant" must show that reasonable steps were taken to ensure the fairness and veracity of the published content. Like the "fair comment" defence, the information must be of public interest.  What are considered "reasonable steps" will vary with circumstances. For example, if the allegations are fairly serious, the defendant will need to show that more thorough research and fact checking was done than for a fairly benign allegation. The Court of Appeal adopted a list of 10 factors articulated in the United Kingdom by the House of Lords Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127 that may be considered in ascertaining whether or not a defendant took "reasonable steps" to ensure the fairness and the veracity of the report:

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.

This list is not exhaustive and the court can consider other factors.

It should be noted that the decision to admit this defence by the Ontario Court of Appeal is presently on appeal at the Supreme Court and that availability of this defence could change in the upcoming months.

Being fairly new, whether the responsible journalism defense applies to blogs, podcast or other modes of dissemination not traditionally considered as journalism remains uncertain. In Cusson v. Quan, the Court only referred to "media defendants" leading us to believe that anyone who posts a text or a podcast on the internet in the public interest should be able to invoke this defense.

Time limitations for bringing a defamation lawsuit vary depending on the jurisdiction, i.e., in what country or province the case goes to trial. They can be very short, and may involve more than one relevant deadline. In Ontario, the general civil suit limitation period is two years from the day that the damage was discovered by the plaintiff. There is a presumption that the plaintiff was made aware of the damage on the day it first occurred so it is necessary for the plaintiff to prove otherwise in Court. The time limitation can however be shorter if prescribed by specific statutes. For example, shorter time limitations are prescribed for defamation lawsuits by the Libel and Slander Act. (See "What are the notice requirements and limitation periods specific to defamation actions?", bellow)

At this time, it is not clear how these deadlines will apply in the online world.

Plaintiffs seeking to sue for being defamed must follow strict notice requirements and limitation periods.  In Ontario (and many other jurisdictions), there are two deadlines to keep in mind.

1. Under the Ontario Libel and Slander Act, a plaintiff must first send a notice in writing specifying the matter complained of. This notice must be sent to each person that is to be sued. No special legal documents need to be used, as a letter explaining specifically what the complaint is about will suffice. It is important that the notice be sent within the time allowed by law. If this is not done in time, the plaintiff will lose his right to sue.

In Ontario, the notice must be sent within six weeks after the alleged act of libel has come to the plaintiff's knowledge. If the defendant is an individual, the notice must be delivered personally to him or her. If the defendant is a corporation, the notice must be delivered to an adult at the corporation's chief office. 2. The Act also sets a deadline for the plaintiff to be able to sue, even if he sends the notice on time. The plaintiff must begin the lawsuit within three months after the libel has come to his knowledge.

It is still unclear how these deadlines will apply to Internet postings. The Act specifically applies to "broadcasts from a station in Ontario" (section 7). However, it is not yet clear whether an Internet posting is a "broadcast".

In one case (Bahlieda v. Santa, 2003 CanLII 12856 (ON S.C.)), the Ontario Superior court, on a motion for summary judgment, said that placing material on a website constitutes broadcasting within the meaning of the Act, and therefore the short time limits apply.

On appeal this decision was overturned (Bahlieda v. Santa, 2003 CanLII 2883 (ON C.A.)).  However, the Court of Appeal did not specifically reject the lower court's reasons. Rather, it said that the question was too important and complex to be dealt with in a summary judgment, and so it sent the matter back to trial.

The Court of Appeal was interested in having a full debate on such issues as deciding whether internet publications are a "broadcast" within the meaning of the legislation, whether the word "dissemination" in the Act's definition of "broadcasting" can properly apply to information distributed by the Internet, and whether subsequent viewing of a web page by third parties amounts to a "republication" of the material (which would reset the clock on the time limits).

In a more recent decision (Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 CanLII 19660 (ON C.A.)) the Ontario Court of Appeal considered that it is possible to infer that internet dissemination is a broadcast in Ontario if it was also a radio broadcast that happened in Ontario.

Until these issues are clarified by a court decision or legislation, the law will remain unclear as to how the current limitation periods apply to internet postings.

Outstanding issues include:

• The Act's short time deadlines apply to "broadcasts from a station in Ontario", but it is not yet clear that they apply to an Internet website. While the definition of "broadcast" is broad, it may not include an Internet website because this does not mesh well with the language of the law as a whole.
• It is not clear what a "station" is in the context of the Internet.
• It is not clear that a website "disseminates" information, i.e., actively sends information, or whether it only passively waits for web surfers to come by.
• The Act contains provisions specific to newspapers and broadcasting stations that require the publication or provision upon request of the names and addresses of owners/operators in order for them to take advantage of these short limitation periods. It is possible that these will apply in the online context as well.
• It is not clear whether there is a new publication every time someone accesses (downloads) the website. If there is, the time limitations would begin anew whenever this happens. Others argue that there is only one cause of action and the limitation period will start running when the statement is first posted on the website.

Note that even if the plaintiff succeeds in these arguments, he still cannot wait indefinitely. He will have to begin his lawsuit within two years of discovering the defamation because of the general limitation period for civil law suits in Ontario.

The global reach of the Internet has thrown a complicated curveball at the legal world on the question of jurisdiction: when should a court hear a case involving allegedly wrongful activity involving parties in multiple jurisdictions? Someone in Ontario can post a comment about an Irishman (with a considerable reputation in Spain) on a website operated by an American, but hosted by an English ISP, and those comments can be read by an Australian while on business in Japan. If the comments are defamatory, can the subject of the comments sue, and if so, where?

Courts have been moving toward a "targeting" test to determine whether a court should assert jurisdiction over any given case. This test considers whether the publication in question is directed towards the territory being asked to assert jurisdiction. In one of the best known applications of that test, Dow Jones & Company Inc v Gutnick, [ 2002] H.C.A. 56, the High Court of Australia ruled that defamatory statements originating in their paper publication, Barrons, but available online at Dow Jones' website, amounted to a wrong actionable in Australia. The Court noted [at para. 181] that "A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it."

More recently, in Bangoura v. Washington Post, 2004 CanLII 26633 (ON S.C.), an Ontario Court had moved beyond the "targeting" test, to consider the case in which the subject of a publication travels from jurisdiction to jurisdiction. In that case, the Court observed that a newspaper "should have reasonably foreseen that the story would follow the plaintiff wherever he resided." Anyone seeking a remedy for defamation in such a context should consider which court has the power to enforce the court order. On appeal, however, the Court of Appeal rejected that approach, returning to a more targeted approach to assessing jurisdiction. The Court of Appeal expressly disapproved of the "following" approach adopted at trial, stating that it "cannot agree . . . that the appellants 'should have reasonably foreseen that the story would follow the plaintiff wherever he resided.' It was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation."  See Bangoura v. Washington Post, 2005 CanLII 32906 (ON C.A.).

These cases emphasize the care that one must take in posting comments on the Internet.

"SLAPP" stands for "Strategic Lawsuits Against Public Participation". SLAPPs are legal actions (usually defamation actions) launched for the primary purpose of shutting down criticism, and without a strong cause of action. The plaintiff's goal in a SLAPP is not to win the lawsuit, but is rather to silence a critic by instilling fear of large legal costs and the spectre of large damage awards. Despite their right to free speech, critics may be frightened into silence B e.g., taking down websites or comments made online - if they are threatened with a defamation-based SLAPP.

CyberSLAPPs are simply SLAPPs launched in the online world. Aside from the above issues, they also raise issues relating to anonymity. Internet users are not easily identifiable (as seen in the recent recording industry file sharing cases). Organizations wishing to discover the identities of their online critics may therefore attempt to launch defamation SLAPPs whose only goal is to obtain the other party's name. This is of great concern since the linking of an Internet identifier (such as an e-mail address) to a particular person will mean that every message that person has ever posted under that identifier becomes known to have originated from them. This can be a problem as many lawful forms of speech, if revealed, can cause harm to the poster. Examples include people seeking advice on marital problems, teenage problems, depression, medical or financial issues. In such cases, however, the court can order that identifying information provided to plaintiffs be kept confidential.

There are already extensive laws in the United States and other countries to try to prevent SLAPPs. In Canada, Quebec is presently the only province with an anti-SLAPP law. It is highly probable that laws will soon be adopted in the rest of Canada.

In British Columbia a law was adopted in 2001 but then later repealed in the same year when a different government was elected. During its short life span, this law permitted people to make an application for summary dismissal of cases on the basis that they were SLAPPs. If the case was deemed to be a SLAPP, the Court could award reasonable costs and expenses as well as punitive damages. It also permitted the court, if the alleged defamatory statement was deemed to be "public participation", to order that a security be paid by the plaintiff for expenses and punitive or exemplary damages.

The Quebec law adopted in June 2009 modifies its Code of Civil Procedure to better address SLAPPs. The modifications to the Code permit a summary dismissal of cases deemed to be SLAPPs. Like the repealed British Columbia law, the Quebec law permits the court to ask the plaintiff for security and to award costs and expenses as well as punitive damages. Also, once the defendant makes a prima facie case that the lawsuit is abusive, the burden shifts to the plaintiff to prove that the case is legitimate. If a SLAPP is suspected, the Court can also set specific rules for the proceedings so as reduce the effects of the suspected SLAPP on the defendant. The object of this law is to impose costs and sanctions on plaintiffs who would seek to use the courts to silence critics.

In December 2008, a private member's Bill was introduced in the Ontario Legislative Assembly and remains on its first reading. Bill 138, the Protection of Public Participation Act is essentially the same as the repealed B.C. law.