Category: Article

Liability for Comments Posted Online by Third Parties 
By Jeff G. Saikaley

When are you liable for the defamatory comments of others? That was the question squarely before the Supreme Court of British Columbia in the Pritchard v. Van Nes, 2016 BCSC 686 (CanLII) decision. In the Pritchard case, the defendant made postings on her Facebook page about the plaintiff to her 2000 ‘friends’, which she then opened up to the public by changing her privacy settings to ‘Public’. Many people posted comments about the plaintiff and shared her posting with their own network of ‘friends’. The Court had no difficulty finding the defendant liable for her own postings, but the issue the Court grappled with was whether she should be held liable for the defamatory comments of others posted in response to her initial post.

The issue of liability for online comments of others is a developing area of the law of defamation. The trend toward liability began in Crookes v. Newton, 2011 SCC 47 (CanLII), a case in which the Supreme Court of Canada dealt with the liability of a webpage creator for hyperlinks to other internet pages containing defamatory material. In that case, Justice Deschamps concluded that only deliberate acts could lead to liability; so the mere hyperlink to a page containing defamatory comments, in and of itself, did not attract liability. Justice Deschamps concurred in the result of the majority judgment, but stated:

The plaintiff must show that the act is deliberate. This requires showing that the defendant played more than a passive instrumental role in making the information available. (para. 91).

However, the case left the door open for situations where the defendant did more than just link to another page. In fact, it left the door open to more broadly define ‘deliberate acts’ to include situations where the defendant is shown to have failed to act to remove defamatory material when s/he has actual knowledge or constructive knowledge of the defamatory material.

In Weaver v. Corcoran, 2015 BCSC 165 (CanLII), the issue before the Court was the liability of the newspaper for the publication of defamatory comments in the reply section of the online edition of the National Post. The plaintiff sued over various articles published by the newspaper, but also claimed that the media defendants were liable for numerous posts made by readers in response to the articles online. The media defendants argued that they played a passive role and took no deliberate action amounting to approval, adoption, promotion or ratification of the contents of the reader posts. They took down the posts within a day or two of receiving the plaintiff’s complaint and argued that it was unrealistic for them to screen the voluminous comments submitted by readers.

Justice Burke held that it would be unreasonable to expect the National Post to review every comment before it was posted and refused to find liability on that basis.

The trend in the caselaw was therefore toward a finding of liability for third party comments when the plaintiff could prove the following elements: 1) actual knowledge of the defamatory material posted by the third party, 2) a deliberate act that can include inaction in the face of actual knowledge, and 3) power and control over the defamatory content.

In the Pritchard case, the Court found Ms. Van Nes responsible for the defamatory comments of her “friends”. The Court held:

When the posts were printed off, on the afternoon of June 10th, her various replies were indicated as having been made 21 hours, 16 hours, 15 hours, 4 hours, and 3 hours previously. As I stated above, it is apparent, given the nine reply posts she made to her “friends”’ comments over that time period, that Ms. Van Nes had her Facebook page under, if not continuous, then at least constant viewing. I did not have evidence on the ability of a Facebook user to delete individual posts made on a user’s page; if the version of Facebook then in use did not provide users with that ability, then Ms. Van Nes had an obligation to delete her initial posts, and the comments, in their entirety, as soon as those “friends” began posting defamatory comments of their own. I find as a matter of fact that Ms. Van Nes acquired knowledge of the defamatory comments of her “friends”, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis. (par. 109)

The Court distinguished the Crookes case and found that Ms. Van Nes was not passively providing a platform or links to defamatory material; she was providing a “forum for engagement with a circle of individuals who may share some degree of mutual familiarity. As noted above, the social nature of the medium is such that posts about concerns personal to the user may reasonably be expected to be discussed by “friends”.” The Court found that Ms. Van Nes ought reasonably to have expected her “friends” to make sympathetic replies. When they replied, Ms. Van Nes was continued to be an active participant by replying to the comments and prompting further reactions which “added fuel to the fire, compounding the chances of yet more defamatory comments being made.”

It is interesting that the Court made a finding that a Facebook user (or any similar social media platform) has a positive obligation to actively monitor and control posted comments. This case will have precedential value and sends a strong message that social media users can no longer “vent” online without consequences. This type of public shaming is becoming more and more common, with devastating consequences. This precedent allows the plaintiff to seek recovery from the person that created the platform for others to attack his/her reputation without having to identify each one and sue them individually.

Justice Saunders concluded on this point by stating “the potential in the use of internet-based social media platforms for reputations to be ruined in an instant, through publication of defamatory statements to a virtually limitless audience, ought to lead to the common law responding, incrementally, in the direction of extending protection against harm in appropriate cases. This is such a case.”

If this precedent stands, everyone using social media platforms such as Facebook will need to take notice. If you use these platforms to “vent” or “rage” about others, you should not only be concerned about your own comments, but those of others that respond to your postings. If you are going to create a platform for others to join in on the conversation, you will have to closely monitor their comments and remove those that are defamatory as quickly as possible. Otherwise, you could be found liable for comments made by someone else and pay damages and legal fees to the plaintiff.

 

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New Anti-SLAPP measures have far reaching consequences

By Jeff G. Saikaley and Geneviève Lévesque

The Ontario government has passed a law (the Protection of Public Participation Act, 2015), which amends certain provisions of the Courts of Justice Act allowing defendants the right to bring a motion early on in the litigation to test the merits of a defamation action. The purpose: to determine if the action is what is known as a SLAPP suit (a Strategic Lawsuit Against Public Participation). If the action is deemed by a judge to be a SLAPP suit, the action is dismissed and the plaintiff may be ordered to pay all of the defendant’s costs. If a judge determines that the case is not a SLAPP suit, the action goes on.

There is very little empirical evidence that the Act is solving an existing problem. I am not aware of any studies establishing how many SLAPP suits are actually brought each year and what impact they are having, if any, on curbing the public’s participation in matters of public interest.

Notwithstanding, the purpose of the Act is laudable: to encourage expression on matters of public interest and to discourage the use of litigation as a strategic tool to unduly limit such expression.

What is most troubling about this new law, however, is that there is no definition of what constitutes a SLAPP suit. As a result, defendants in most defamation actions will take a run at the case by bringing such a motion and the cards are heavily stacked against the plaintiff.

The following are the highlights of the new merits review process as set out in sections 137.1-137.5 of the Courts of Justice Act:

  • The defendant’s motion must be heard within 60 days of it being filed. In most cases, an early procedural motion can take 3-4 months to be scheduled. The province has deemed these motions so urgent that they must be heard more quickly, rather than in the ordinary course like all other motions, which is unusual to say the least.
  • The action shall be dismissed if the moving party satisfies the judge that the proceeding arises from an expression that relates to a matter of public interest. Although “expression” is defined, what is in the public interest is not defined and the door is wide open to argue that any matter that a defendant spoke/wrote about was in the public interest. The best definition of public interest is likely the following from the Supreme Court of Canada’s decision in Grant v. Torstar:

[par. 102] How is “public interest” in the subject matter established? First, and most fundamentally, the public interest is not synonymous with what interests the public. The public’s appetite for information on a given subject — say, the private lives of well-known people — is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination. Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest. It is enough that some segment of the community would have a genuine interest in receiving information on the subject.

  • To resist the dismissal of the action, the plaintiff has to satisfy the judge that there are grounds to believe that the action as “substantial merit” and that the defendant has “no valid defence”. The plaintiff must also show that the harm likely to be or have been suffered by the plaintiff as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. This, in my view, is the most troubling of all for reasons that I will explain below.
  • If the judge dismisses the action, the defendant can be awarded full costs and damages, if the judge finds that the action was brought in bad faith. These are quite remarkable developments as it is rare for a defendant to be awarded 100% of their legal costs of a case even if entirely successful, and it is unheard of to be awarded damages on top of that for having the claim dismissed. Whereas if the plaintiff is successful, no costs are awarded unless it’s deemed appropriate in the circumstances.

The onus on a plaintiff to avoid the early dismissal of his/her defamation action is incredibly high. The motion is heard very quickly – within 60 days. From a practical perspective, the plaintiff who just served a Statement of Claim and is now served with a motion to dismiss has to martial evidence quickly to show that the action has “substantial merit”. In most cases, all that the plaintiff knows is that a statement was made (in writing or orally) and that it is defamatory. The circumstances of the publication, the sources of the information and other relevant factors are not usually within the plaintiff’s knowledge at this stage.

In addition, it is not clear what “substantial merit” means or how this can be proven at an early stage. The wording suggests that this is more than a preliminary or cursory review of the merits. This is clearly more than showing a “prima facie” case against the defendant. It appears that this motion will be treated like a summary judgment motion for a plaintiff and s/he will have to put their best foot forward (lead trump or risk losing) on a merits review to avoid a dismissal of the action. This is a very high bar, particularly in a defamation case where competing interests of free speech and protection of reputation are competing values at best of times.

The same plaintiff will have to convince the judge that the defendant has “no valid defence”. I have practised in this area enough to appreciate that both sides to a defamation case have enough tools available to them at common law (and in the Libel and Slander Act) to muster valid arguments and positions in their pleadings. There are a multitude of defences that can be raised, including but not limited to justification (truth), fair comment, qualified privilege and the responsible communication defence. In most situations, a defendant can rely on one or more of these defences to put up a good fight, even in the most egregious of libels. For a plaintiff to prove, within 60 days of suing the defendant, that there are “no valid defences” is extremely difficult.

To date, the wording of this new merits review process enacted specifically for defamation actions has been interpreted by two decisions, which do not deal with defamation. In the first, 1704604 Ontario Ltd. V. Pointes Protection Association et al., 2016 ONSC 2884, Justice E. Gareau  interpreted the wording narrowly to avoid dismissing a valid contract action and allowing the plaintiff to proceed to a full trial, specifically employing a low threshold for the burden of proof placed upon the plaintiff “given the significant remedies in Section 137.1 and the protection for litigants to bring legitimate claims before the court” (para 50).

The facts of the case dealt with a plaintiff, a company that proposed a development, claiming breach of contract and damages whereby the defendants, an incorporated association of residents from a community in Sault Sainte Marie, testified before the Ontario Municipal Board on an issue contrary to previous minutes of settlement that led to a court order. The testimony was considered an expression that relates to a matter of public interest as the proposed development would affect the municipality at large. On the other hand, the “sanctity of agreements made between parties” (para 47) was considered of substantial merit, in the sense that it has substance, and out-weighed public interest; additionally, in the absence of a filed defense and in the view of the presiding judge, there was no valid defence. Although both parties met their burden of proof, neither got costs.

In the second, the Ontario Municipal Board specified in Campione v. Vaughan (City), 2016 CanLII 33681 (Ont OMB) that “an appeal right or securing standing as a party in a proceeding before the Board […] and then being able to call a full case as an appellant or added party” does not constitute a matter of public interest. This case dealt singularly with the issue of costs.

As a lawyer prosecuting several defamation actions for clients, the concern is that there are insufficient safeguards in place to limit the merits review to the true SLAPP suits. More is required to define the terms and the purpose of these new powers to make clear that only the clearest of cases will be considered SLAPP suits and will be dismissed at an early stage.

As stated by Justice E. Gareau: “the provision of Section 137.1 of the Courts of Justice Act [is] awkwardly drafted which is also surprising given the drastic effect of its provisions” (para 24). A clear interpretation and guidelines are required for what “substantial merits” means and what a plaintiff will need to prove to meet the test. A clear interpretation and guidelines are also required for what a plaintiff needs to lead as evidence to prove that the defendant has “no valid defence”. Furthermore, it would be recommended that the legislation be amended to award costs to the successful party of the motion rather than disproportionally awarding the successful moving party of the motion. Otherwise, several valid defamation actions will fail because of this new merits review, which will discourage plaintiffs from commencing defamation claims in the future. Despite its “quasi-constitutional status” in Canadian law, the protection of reputation will be eroded and it could be open season for unjustifiable reputational warfare in Canada.

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“Public Disclosure of Embarrassing Private Facts”
– A New Tort for the Internet Age?

By Jeff Saikaley & Gabriel Poliquin

In this era of “sexting” and “revenge porn”, many more potential clients are vulnerable to their most private moments being distributed online for the world to see, quite literally. In a recent decision, Doe 464533 v N. D. (2016 ONSC 541), Stinson J. of the Ontario Superior Court of Justice has boldly gone where few had dared to go.

The story is sadly familiar: boy meets girl, they have an intimate relationship, boy pressures girl to send him an intimate video of herself for his viewing pleasure only (or so he tells her), boy posts video on the internet and girl’s life, health and reputation are severely damaged, possibly forever.

The consequences of such conduct are not trite. As Stinson J. observes, the impact of the defendant’s conduct is similar to the impact of a sexual assault: physical and mental distress, eating and sleep disorders, panic attacks, depression, anxiety and, in some cases, suicide. Stinson J.:

[16] In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.

The federal Parliament has caught up with the phenomenon and amended the Criminal Code to make the “publication of an intimate image without consent” a criminal offence punishable by up to five years in prison (s. 162.1). Manitoba has also created the legislative tort of “non-consensual distribution of intimate images” (see The Intimate Image Protection Act, C.S.S.M. c. I87, s.11). The Ontario Legislature, however, has not yet followed suit.

In this legislative vacuum, Stinson J. concludes that “that there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition. The plaintiff’s action was not defended and yet, in a bold move, Stinson J. decided it was appropriate to issue articulated reasons to substantiate the existence of a new tort, so pressing is the need for legislative action in these matters, whether properly legislative or judicial.

Stinson J. finds legal authority for the tort in an American legal article by William L. Prosser on the invasion of privacy (Privacy” (1960), 48 Cal. L. Rev.) on whose authority the Ontario Court of Appeal had also recognized the tort of “intrusion upon seclusion” in Jones v. Tsige, 2012 ONCA 32. Intrusion upon seclusion is one of four distinct torts identified by Prosser under the theme of invasion of privacy. In Jones v. Tsige, the defendant was found liable for snooping on the plaintiff by accessing the latter’s bank records. The tort of intrusion upon seclusion comprises the four following elements:

  1. There must be something in the nature of prying or intrusion;
  2. The intrusion must be something which would be offensive or objectionable to a reasonable person;
  3. The thing into which there is prying or intrusion must be, and be entitled to be, private, and;
  4. The interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.

The second of Prosser’s four torts is the “public disclosure of embarrassing private facts,” now recognized by the Ontario Superior Court. How does it differ from intrusion upon seclusion? The difference is in disclosure. The elements of the tort adopted by Stinson J. were those of the Restatement (Second) of Torts (2010):

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public [underlining by Stinson J.].

The two torts also differ in the amount of damages awarded.

Though the victim of intrusion upon seclusion may suffer damage from being pried upon, the tort does not involve publication. It is the publication of embarrassing private facts that can result in very serious damage, including the damage to one’s reputation. (Note: the tort differs from defamation in important respects. Defamation targets the publication of false statements that can cause damage to one’s reputation. Damage resulting from defamation is presumed if its elements are made out).

Whereas the plaintiff in Jones was awarded $10,000 in general damages, (with ample cautionary language from the Court of Appeal), Stinson J. awarded the plaintiff general damages of $50,000, owing to the fact that the plaintiff had suffered damage akin to those that result from sexual battery or abuse. Stinson J. also awarded $25,000 in aggravated damages, as the defendant’s breach of confidence was an affront to their relationship that made the impact of his actions even more hurtful and painful for the plaintiff. Stinson J. further awarded $25,000 in punitive damages, owing to the fact that the defendant showed no remorse and acted insolently.

Stinson J.’s recognition of a new tort, though welcome, is particularly bold where the plaintiff also made out causes of action for two relatively familiar torts: breach of confidence and intentional infliction of mental distress.

There is significant overlap between the public disclosure of embarrassing private facts and breach of confidence. As Stinson J. reminds us, the elements of the latter tort are the following:

  1. that the information must have the necessary quality of confidence about it;
  2. that the information must have been imparted in circumstances importing an obligation of confidence; and
  3. that there must be unauthorized use of that information to the detriment of the party communicating it

Not all breaches of confidence will amount to the public disclosure of embarrassing private facts, however. Lac Minerals comes to mind, of course, which concerned the disclosure of secrets that were industrial in nature, though not embarrassing. That said, the reverse may be true, the disclosure of embarrassing private facts will surely involve a), information with a quality of confidence that, b), was imparted in circumstances importing an obligation of confidence and c) the unauthorized use of that information will be to the detriment of the originating party. If in doubt, plead both.

The same cannot be said for intentional infliction of mental distress, whose distinguishing factor is an element of intention, or, at the very least, the knowledge that disclosure would result in harm. On the facts of the case, Stinson J. was of the view that the defendant had an intention to cause the plaintiff harm, a fact which also translated into aggravated damages. It would likely be appropriate to plead this tort in similar cases that involve so-called ‘revenge porn’, where intimate images are disseminated out of vindication. Not all cases are of that nature, intimate images may be disseminated out of pure immaturity or as an unfortunate consequence of ‘affluenza’. Again, if in doubt, plead both – you never know what will come out in discoveries.

Of note – Stinson J. was of the view that the plaintiff’s psychological harm did constitute a ‘visible and provable illness’ sufficient to satisfy the third element of intentional infliction of mental distress. The fact that the plaintiff suffered from depression and that she sought care in a crisis centre were decisive in satisfying this element of the tort.

In conclusion, though the addition of this new tort is welcome insofar as it potentially provides a cause of action for plaintiffs who may otherwise have fallen through the cracks of older torts, there remains significant overlap between torts of this nature, old and new. As such cases are, unfortunately, becoming more and more frequent, we can expect the courts to spend time teasing their differences apart.

In recent news, the defendant has now sought to set aside the judgment. It remains to be seen if he is successful in doing so and whether this new tort will remain part of the litigator’s toolkit going forward.

UPDATE!

The defendant was successful in his motion to set aside the default judgment upon payment of $10,000 to the plaintiff for costs. The plaintiff sought leave to appeal from the decision setting aside the default judgment and, on January 9, 2017, leave to appeal was denied by Justice Kiteley. The decision can be read here:  http://www.canlii.org/en/on/onsc/doc/2017/2017onsc127/2017onsc127.html.

It appears that, as of now, Justice Stinson’s decision is no longer good law. It will be interesting to see if the new tort is applied and adopted in future cases or if we have seen the early demise of the ‘public disclosure of embarrassing private facts’ tort.

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