Law, Social Media, and Freedom of Speech February 1, 2013 for the Alberta Weekly Newspaper Association

1. Law, Social Media, and Freedom of SpeechFebruary 1, 2013for the Alberta Weekly Newspaper Association Dan Carroll, Q.C. Field LLP dcarroll@fieldlaw.com www.fieldlaw.com

2. Disclaimer This presentation is intended for general educational purposes only and is not legal advice. Consult your lawyer for advice specific to your circumstances.

3. Pop Quiz 1. What is the largest organism in the world? 2. How would you go about confirming (or not) your answer?

4. The Answer to Question 1

5. World’s Largest Organism The largest organism on earth is a fungus: Armillariaostoyaeaka the “honey mushroom”. • Like the familiar fairy ring • Discovered in 1998 • Occupies almost 4 square miles in the Blue Mountains of Oregon • Is between 2,400 and 8,650 years old • Tastes good but kills coniferous trees

6. The answer to Question 2?

7. A Comparison Fungus Internet Network of computers joined by “wires” Largest manmade tool Age: is measured in decades Seemingly everywhere Very useful But can destroy • Network of mushrooms joined by filaments • Largest living organism • Age: is measured in millennia • Indeterminate boundary • Tastes good • But kills

8. Intersection of the Internet and the Law “Paging Dr. Freud. Paging Dr. Freud.” “This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.” Bruni v. Bruni 2010 ONSC 6568 How did this judge reach this conclusion?

9. Intersection of the Internet and the Law “In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.” Does cyberspace = a new mode of “no holds barred” communication?

10. The Internet and Defamation • The Internet presents a communication revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect the geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation. • Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ONCA) citing Mathew Collins, The Law of Defamation and the Internet (Oxford University Press, 2001)

11. Elements of Defamation • Publication • Of a statement that identifies the complainant • Where the statement is such that it would lower the estimation the complainant in the mind of a right thinking citizen • To third parties • Words or pictures: reasonably understood to refer to complainant • Injury to reputation: the test is objective

12. What is “publication”? • Crookes v. Newton (2011 SCC 47) • Newton ran a website with his commentary on free speech and the Internet. The site did not defame Crookes, but it contained links to articles on other websites that did. • Issue: Do links count as “publication” in defamation law, opening the site and its publisher to liability? • Answer: No

13. What is Defamatory? • Remember: the statement must “tend to lower [the Plaintiff] in the estimation of right-thinking members of society” or to “expose [him] to hatred, contempt or ridicule”: Botiuk v. Toronto Free Press Publications Ltd • To some extent, this standard shifts with the times. • For example, in Yonaty v. Mincolla, the defendant Mr. Mincolla started telling people the plaintiff Yonaty was gay, in an attempt to break up Yonaty’s relationship with his girlfriend.

14. What is Defamatory? • Though this seems like an adolescent and misguided plan, it worked! Mincolla told a close friend of the girlfriend, who told the girlfriend’s mother, and in a few months the relationship was over. • Yonaty sued for defamation, among other torts. • New York’s key precedent holding that allegations of homosexuality are defamatory dated from 1984. • At the time, the Court ruled “the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored”

15. What is Defamatory? • The Court observed that times had certainly changed. • In light of legal, social, and political changes, including the recent enactment of same-sex marriage legislation in New York, there has been a “tremendous evolution” in social attitudes regarding homosexuality– current public opinion does not support the notion that an allegation of homosexuality is harmful. • Canadian common law on defamation of non-public figures is similar to American– keep an eye out for a similar decision in Canada.

16. What is Defamatory?If you’ve already got a terrible reputation • Sarah Jones, a teacher and former NFL cheerleader, sued thedirty.com and its proprietor for defamation. • That website (we don’t encourage you to visit it) hosts user-submitted photos and captions, chosen by the site’s editors, who often comment on the photo. Most are obviously defamatory. • The entry for Ms. Jones accused her of contracting an STD from a former boyfriend and sleeping with several pro football players

17. What is Defamatory?If you’ve already got a terrible reputation • While the civil suit was pending, Jones was convicted of sleeping with one of her 17 year-old students. • Thedirty.com raised several defences. • Under the US Communications Decency Act, websites aren’t liable for content posted by others. • If they were, Facebook and Google would need a bigger legal budget. • But they are liable if they create or promote the defamatory content– if they exercise editorial control over it.

18. What is Defamatory?If you’ve already got a terrible reputation • Thedirty.com argued merely selecting user submissions and adding commentary isn’t “creating” the content • They also suggested that you can’t defame someone whose reputation is already tarnished– as Ms. Jones’s was after her ignominious conviction. • The case went to a jury trial, which was deadlocked at 9-1 in Jones’ favour– a mistrial was declared.

19. Is the Internet to be treated differently? Yes. • Baglow v. Smith - action by a politician for online defamation against a political commentator based on a what was said in a blog - “one of the Taliban’s more vocal supporters” • trial court, 2011 ONSC 5131: the action is dismissed summarily on the basis of not capable of being defamatory and fair comment. Court gives weight to the fact the remarks made in a blogging thread over the Internet. 19

20. Is the Internet to be treated differently? Maybe. • appeal court, 2012 ONCA 407: the trial decision is overturned • A full trial is ordered on the questions, amongst others: • Are the legal considerations that apply to publication over the social media - Twitter, Facebook or blogs - different from those applied to traditional media? • Are statements made in the modern day equivalent of a live debate capable of being defamatory? 20

21. Who Sues? Politicians! • Example: The City Centre Airport Saga • Blogger named “Darren Holmes”, supposedly a Seattle journalist, writes a post including this allegation against Stephen Mandel: • “A land developer Mayor votes to close an airport to be converted into residential development. A group arises to protest the decision during an election and, in response, the Mayor creates a counter group to promote his decision to close the airport. And the counter group is given office space and phone lines by one of the biggest land developers in the city.”

22. Who Sues? Politicians! • Implication that the Mayor has a financial interest in downtown airport redevelopment • Press reveals “Darren Holmes” doesn’t exist. The blogger is Nathan Black, coordinator of Envision Edmonton petition to keep the airport open. • Mayor sues Black for defamation, seeks $500,000 punitive damages

23. Who Sues? Politicians! • Mayor successfully gets the action “sealed” • Unclear why judge sealed it. No grounds for keeping the suit secret. Media quickly applies to have it unsealed and succeeds. • To link the blog to Black, Mayor gets Norwich order against: • Twitter • Wordpress (the blog website) • Automattic Inc. (Wordpress’ parent co.) • MagicJack • YMAX Corp. (MagicJack’s parent co.) • GMAX (the hosting company) • Shaw (the Internet Service Provider)

24. Who Sues? Politicians! • Starts proceedings in San Francisco (U.S. Federal Court) to enforce the Alberta court order for access to identifying information • Six U.S. companies get roped in, plus Shaw • Expensive, time consuming • Suit eventually dropped once press gets wind of it • ...and Mandel realizes it is a bad idea!

25. More Politicians • Kent v. Martin et al.: Journalist Arthur Kent ran in the 2008 Alberta provincial election. Just before Election Day Martin, a National Post columnist, published an (allegedly) defamatory column about Kent. Martin wrote: • “Senior campaign strategists in Alberta cannot recall a worse case of a shooting-star candidate, someone so self-absorbed that Kent has actually mocked the party for failing to treat him with a desired level of reverence.” • “The “Stud Scud” will land in politics with a thud. He should pray to lose so his “star” qualities will find another place to shine.”

26. More Politicians • Kent lost the election and sued for $8 million in damages • The largest defamation award against a media defendant in Canadian history is $1.3 million • One of Martin’s sources was Kent’s lawyer and Official Agent, who is now being sued, too. • There have been nearly a dozen procedural applications to add defendants, get costs, seek summary judgement, consolidate actions,.etc. • Litigation is ongoing…

27. Have These Politicians Missed the Boat? • Cases since 2008 suggest defamation suits by public figures against newspapers are an uphill battle. • If the speech meets the “fair comment” or “responsible communication” tests, can only be defeated by proving malice. • Tough road for plaintiffs since most of the evidence is in the possession (or mind!) of the defendant • New emphasis on freedom of expression over protection of reputation

28. Interlocutory Remedies • Interim Injunction - to remove posting • CNR v. Google, 2010 ONSC 3121 • Norwich Order - to disclose author • York University v. Bell Canada, 2009 CanLii 46447 (ONSC) • Sealing Order - to seal Court file • A.B. v. Bragg Communications, 2012 SCC 46 28

29. Suing anonymously? • In A.B. v. Bragg Communications a 15 year old girl found out someone created a fake Facebook profile in her name, along with defamatory material about her. • She sued for defamation, and requested to be able to conduct the suit anonymously. • A unanimous Supreme Court decided that even though the open-courts principle is “tenaciously embedded in the jurisprudence,” privacy and protection of children from cyberbullying justifies restricting it. 29

30. Suing anonymously? • “If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully.” • This only applies to minors, for now; adults can’t be anonymous. • But the Court refused to impose a publication ban on the non-identifying evidence from the Facebook profile 30

31. Defenses to Defamation • Deny any one or more of the three essential elements • Not published • Doesn’t identify the complainant • Not defamatory – not capable of being defamatory: e.g. name calling, parody, Twitter? • Lack of Statutory Notice (Defamation Act) • Truth/Justification • Fair Comment • Responsible Communication • Privilege: Absolute, Qualified, Statutory

32. Defenses to DefamationLack of Statutory Notice • Defamation Act (Alberta), s.13 • Recently raised in an Internet publication case: • Alberta Adolescent Recovery Centre v. CBC, 2012 ABQB 48, summary judgement sought • Does the Defamation Act apply to the program posted on CBC website? • If so, when does the act of defamation occur for calculation of time - date of posting, or continuous? • remitted for consideration at trial

33. Defenses to DefamationTruth/Justification • Applies to statements of fact • Onus on the defendant to prove the truth of the “sting” – the substance – of the defamatory statements • Must be provably true by the laws of evidence • Witnesses • Documents • Big downside risk - failure to prove truth results in a higher damages awards and higher costs awards against a defendant

34. Defenses to DefamationQualified Privilege • In Whitehead v. Sarachman, 2012 ONSC 6641, a Hamilton city councillor got in a group email spat with a constituent, calling him “a destructive mean spirited liar that does not deserve the time of day” in an email to the rest of council. • The constituent sued; a trial judge found defamation and assessed $15,000 in damages. • The appeal court overturned, because the trial judge had failed to apply the test for the “qualified privilege” defence

35. Defenses to DefamationQualified Privilege • Qualified privilege applies to occasions where defamatory statements are made, not to statements themselves. • The parties to the conversation have to be in a mutual relationship of some kind of duty • Typically that includes things like statements to the police • But qualified privilege can be defeated by a showing of malice, either by proving a lack of honest belief in the statements or a use of the privileged occasion for an improper purpose

36. Defenses to DefamationQualified Privilege • But the rough and tumble (or knives and bats) world of politics doesn’t render all statements malicious: • “It is not an illegitimate purpose for a politician to seek to “re-enforce his own political goals”. It is not “some private advantage unconnected with the duty or interest which constitutes the reason for the privilege.” Rather, that might be part of a politician’s job description. Similarly, although it may seem distasteful, “discrediting one’s opponents” may be an essential aspect of political debate.”

37. Defenses to DefamationQualified Privilege • In other words, political speech gets the most protection, even when childish and near-malicious: • “The law of defamation balances important competing interests. Society as a whole benefits from full and frank debate of public issues. Public officials have a duty to speak candidly on matters of public interest. Political debates should not be stifled by “libel chill”, which casts a broader penumbra than the metes and bounds of the tort of defamation. Mis-statements, overstatements and excessive language may be exposed and corrected through public debate, often in a more timely and effective manner than through the slow process of a civil action.”

38. Defenses to DefamationFair Comment • WIC Radio v. Simpson, 2008 SCC 40 • Applies to statement of comment, not fact • On a matter of public interest • Based on fact • Recognizable as comment • Fairly made, in the sense that a person could honestly express the opinion based on proven facts • Made without malice

39. Defenses to DefamationResponsible Communication • Quan v. Cusson, 2009 SCC 62 • Applies to statements of fact • must relate to the public interest • must have been published “responsibly” • e.g. based upon information a reasonable person would accept as reliable, even though later it may not be possible later to prove the truth of the defamatory statement of fact on admissible evidence • e.g. a fair and neutral report of both sides of a dispute

40. Responsible CommunicationQuan v. Cusson • An OPP constable (Cusson) travelled to New York after 9/11 • not through his employer: on his own • presented himself, with his dog, Ranger, as an RCMP-trained search and rescue team • They weren’t.

41. Cusson & dog

42. Responsible CommunicationQuan v. Cusson • Cusson was portrayed as a hero in the media. There were reports he saved two businessmen from the rubble. • But his story unraveled, New York authorities banned Cusson from WTC site. • Ontario press reports he had no K-9 training and that he violated OPP rules by taking his uniform and gun out of the province.

43. Responsible CommunicationQuan v. Cusson • Cusson sues. • After a jury trial he recovers a damages award of $100,000. • Eventually the Supreme Court decides this case (with companion Grant v. Torstar, 2009 SCC 61) - establishes the new defense of “responsible communication on matters of public interest” • Requirements?

44. Responsible CommunicationQuan v. Cusson A. The publication is on a matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation (b) the public importance of the matter (c) the urgency of the matter (d) the status and reliability of the source (e) whether the plaintiff's side of the story was sought and accurately reported (f) whether the inclusion of the defamatory statement was justifiable (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”) (h) any other relevant circumstances.

45. Malice Defeats some Defenses to Defamation • Malice defeats fair comment and responsible communication defenses, but not truth. • Malice is established by showing, for example: • Defendant's dominant motive was to injure the claimant, or • Defendant was intentionally dishonest or was reckless (cavalier) as to the truth, or • Defendant acted from an ulterior motive conflicting with the interest or duty giving rise to the defense. • If proven, malice also results in a higher damages award and a higher costs award against a defendant.

46. Malice in Practice • Astley v. Verdun - the defendant Verdun was a shareholder in BMO; plaintiff Astley was a Director • Verdun waged a years-long public crusade against Astley, calling him “a white-collar criminal who should be jailed for fraud” • One vehicle for his publication: shareholder proposals. Bank Act requires they be published in proxy circulars • Jury rejected Verdun’s defence that he was a “shareholder’s rights advocate” • He pleaded qualified privilege, fair comment, and responsible communication; all rejected by jury • Found Verdun was actuated by malice; he had an unreasonable fixation on Astley

47. Malice in Practice • Jury awarded $650,000 in damages • Plus $215,000 in legal fees • Lesson: while malice is hard to prove, if successful, damage awards can be very large • the defamation was serious, • the defendant’s reputation was strong, and • the defamatory publication inflicted major damages to reputation affecting livelihood

48. Damages • Damages are assumed in defamation actions; they needn’t be pleaded • Statements that lower your reputation in the community are considered inherently damaging without proof of concrete effects • but such proof will increase the award • Damages range from nominal ($1) to exorbitant ($1.6 million: Hill v. Church of Scientology)

49. Unpredictable Awards • In Angle v. LaPierre, 2006 ABQB 198 parents mounted personal attacks from a website they maintained, against a school principal, teachers and staff. • Principal, teachers, staff and teachers’ union (ATA) sued. • Damage awards ranged from $23,500 (principal) to $1 (teachers’ union).

50. Criminal Libel • Criminal libel prosecutions are rare, but they do happen. • A former Drumheller town councillor was recently arraigned on charges of defamatory libel stemming from a Facebook post • She elected to have her case heard by a Court of Queen’s Bench judge and jury • But the prosecutor recently agreed stay the charges in exchange for a two-year peace bond, community service, and an apology.