Defamation

In the current age of technology and social media, online defamation has become an increasingly prevalent issue that has created challenges for legal system across Canada. Defamation involves untrue statements that are made by someone that are harmful to another’s reputation. Defamation can be categorized either as libel or slander. Libel refers to written statements and slander refer to oral statements. The laws around defamation seek to balance an individual’s right to freedom of expression with the right to not have harm done to one’s reputation.

An emerging field in the area of defamation is what is known as Cyber-libel. Cyber-Libel occurs when someone posts or emails something that is untrue and damaging about someone else on the internet, including and not limited to, social media, personal websites, blogs, chatrooms, bulletin boards, message boards, video streaming sites, or published articles.

In order to prove defamation, the Plaintiff (the person bringing the claim) must establish three things:

  1. The impugned words or statements were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
  2. The words or statements in fact refer to the Plaintiff; and
  3. The words and statements were published, meaning that they were communicated to at least one person other than the Plaintiff.

When these three elements of defamation are met, the statements are presumed to be false and defamatory. The burden of proof would then shift to the Defendant (the person being sued) to provide a defence. Defences to defamation include but are not limited to:

  1. Made only to the person it is about – if the statement was made only to the person mentioned in the statement and not to anyone else, the third criteria of publication is not met and defamation is not established;
  2. True statements – if the statements made are true and the person making the statement does so with an honest intention, defamation cannot be established;
  3. Absolute Privilege – statements made in court or in parliament are not subjected to defamation claims;
  4. Qualified Privilege- statements made in certain situations where there is no malice involved are not considered defamatory (i.e employer requested to give reference for an employee and they give a statement that is their honest opinion); and
  5. Fair Comment – statement made about issues of public interest, as long as the statements are honest and based on fact are not defamatory. This defence does not apply if statements are made with malicious intent.
     

I have been defamed online, what do I do now?

If you have been defamed and the defamatory statements were published online, whether or not you know the identity of the uploader of the defamatory statements will determine your course of action.

 

I know who uploaded the defamatory statements

If you know the identity of the uploader of the defamatory statements, the first step would be to make a direct request to the uploader to remove the defamatory statements from whatever platform they have posted it on. This can be done either informally (through email, or chat), or formally (through a demand letter written by a lawyer). If the uploader removes the defamatory content as per your requests, all is well and no further action is necessary. If the uploader refuses or ignores your request, the next step would be to seek legal help to bring forth a court action suing the uploader for defamation and for the defamatory content to be taken down.

In order to start an action for defamation, you would need to file a document called a Notice of Civil Claim. After this document has been filed, your matter is assigned a Court File Number and all further documents on your matter will be filed under this number. Upon receiving the filed copy of your Notice of Civil Claim, you would then have to personally serve the document on the uploader of the defamatory content. Personal service means that someone (other than yourself), must physically hand the document to the person who needs to receive it. This can be done by a friend, family member, or you can hire a professional process server.

Once your Notice of Civil Claim has been filed, you would then need to file an application to the Court for something known as an interlocutory injunction. An interlocutory injunction is a court order which compels or prevents a party from doing something pending final determination of the case. In the case of defamatory, the interlocutory injunction would be an order compelling the uploader to remove the defamatory content that they have posted online.

In order to obtain an interlocutory injunction, the court must be satisfied that three criteria are met. They are as follows:

  1. There is a serious question to be tried;
  2. The Applicant would suffer irreparable harm if an interim injunction is not granted; and
  3. The balance of convenience favours the granting of the injunction.

For the case of defamation, the threshold for the first criteria is elevated from a serious question to be tried to the clearest of cases where the impugned statements are “manifestly defamatory”. In order to show the statements are manifestly defamatory, the Applicant must satisfy the three criteria for defamation.

If the court is satisfied that the interlocutory injunction should be granted, an order will be made and filed with the court. Once you receive a copy of the filed order, you must then serve it by ordinary service (i.e., email, mail, courier) to the uploader of the defamatory content to provide him with notice. The uploader is then required by law to remove the defamatory content that he has posted online.

 

I don’t know the identity of the uploader

In the case where you are not aware of who the uploader of the defamatory content is, the situation is a bit more complicated. You would still file a Notice of Civil Claim to start an action, but instead of naming an individual as the Defendant, you would name a “John Doe”, indicating that you are unaware of the identity of the offender.

Once the Notice of Civil Claim has been filed, you would bring an application to the Court for an interlocutory injunction, but this application would be addressed to whatever online platform the defamatory content was posted on (i.e. YouTube, Google). The online platform would have to be served with your application materials and provided sufficient notice of the scheduled court date, or you run into the risk of a later application by the online platform seeking to dismiss your application on procedural grounds.

The test for obtaining an interlocutory injunction is the same as the test outlined above. In the event you are able to obtain an order, serve it to the online platform and they would be legally required to remove the defamatory content from their servers.

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