Social Media & Defamation – Be Careful What You Post From Behind a Screen!

By Catherine E. Willson, B.A., LL.B. with the assistance of Grace E. Brooks, J.D., Articling Student at GSNH.

Defamation is defined as untrue statements made by an individual that is 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 and Tumblr, etc.), is a problem.  Individuals feel more liberated to say what they are thinking (or not thinking) while hiding behind a computer screen or cellphone. We need only look south for an almost weekly example of this behaviour.

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:

1. The words disseminated would lower the complainant’s reputation in the eyes of a reasonable person;
2. The words referred to the complainant; and
3. 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 comments made are:

1. Truth – the truth, even ugly truth, is not defamatory.
2. Fair comment – a statement of opinion is not defamatory.
3. Absolute privilege – statements made in parliament, at trial or in court documents.
4. Qualified privilege – statements made without malice and for an honest and well-motivated reason.

If you are a victim of defamatory comments, here are a few things you can do:

1. Act fast – deal with the issue head-on, try to have the defamatory statement removed before it spreads.
2. Seek expert advice – you may wish to seek the help of an experienced defamation lawyer.
3. Obtain evidence – screenshot, print and save evidence of all postings relating to the defamatory material.
4. Ignore it – if it is something that will quickly be forgotten, don’t fuel the fire.
5. Refute the statement – make a statement of your own providing your side of the story and refuting the defamatory statement made.
6. Send a cease and desist notice – send a letter requesting that the defamatory statement be removed, retracted, and an apology made.
7. Sue – this should be the last option. Litigation is emotionally draining, uncertain, and expensive.

So next time your fingers get itchy on that cell phone or computer, take a step back and think before you post or it may come back to haunt you.

This information deals with complex matters and may not apply to particular facts and circumstances.  The information reflects laws and practices that are subject to change.  For these reasons, this information should not be relied on as a substitute for specialized professional advice in connection with any particular matter.