Social Media, the Internet and Defamation September 19, 2012 for the CBA Research Lawyers Section, Calgary

1. Social Media, the Internet and DefamationSeptember 19, 2012 for the CBA Research Lawyers Section, Calgary 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. 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?

4. 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?

5. 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)

6. 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

7. 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

8. What is Defamatory? Example, from Twitter • Horizon Group Management Ltd. v. Amanda Bonnen (2010 Cook County, Illinois) • Amanda: tenant • Sued by Horizon: management company • Allegation: the Tweet contained false and defamatory matter of the Plaintiff, namely: “…Who said sleeping in a moldy apartment wasn’t bad for you? Horizon really thinks it’s OK.” • Case dismissed: “The Court finds the Tweet non-actionable as a matter of law.” No reasons.

9. What is Defamatory?Another example, from Facebook • She “acquired AIDS while on a cruise to Africa…While in Africa she was seen f**king a horse..I kinda feel bad for (her) but then again I feel WORSE for the horse…” • “…it was not from an African cruise….it was from sharing needles with different heroin addicts, this…caused the HIV virus…she then persisted to sc**w a baboon which caused the epidemic to spread” • She “got aids when she hired a male prostitute who came dressed as a sexy fireman…”

10. What is Defamatory?Example from Facebook, continued • “She” is identified (through a doctored picture of her as “the devil”) • Action was dismissed. The posts were: • “a puerile attempt by adolescents to outdo each other” • “a vulgar attempt at humor” • But did “not contain… statements of fact.” • cyberbullying but not defamation • 2010 New York, NY Supreme Court

11. 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. 11

12. 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? 12

13. 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.”

14. 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

15. 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)

16. 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!

17. 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.”

18. 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…

19. 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

20. 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, 2011 NBCA 26, leave to appeal to SCC granted October 2011 20

21. 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

22. 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

23. 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

24. 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

25. Defenses to DefamationResponsible Communication • Quan v. Cusso, 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

26. 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.

27. Cusson & dog

28. 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.

29. 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?

30. 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.

31. 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.

32. 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

33. 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

34. 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)

35. 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).

36. 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’s elected to have her case heard by a Court of Queen’s Bench judge and jury • Slated for preliminary hearing in October 2012

37. Criminal Libel • Many of the accused in these cases are mentally unstable, often fixated on the defendants and extremely litigious. • R. v. Knight, 2010 ABCA 2 -- Mr. Knight sent several letters to the Alberta Mental Health Ethics Committee alleging a nurse had sexual relations with and attempted to extort money from severely disabled patients.

38. Criminal Libel • The nurse was Mr. Knight’s ex-wife. Knight continued harassing her. • He was eventually charged with criminal libel under Criminal Code, s.300 and convicted. • On appeal, Knight presented new medical evidence that he was delusional and not criminally responsible. • The appeal was dismissed as the evidence was not raised at trial and it would not prove him NCR in any case.

39. Criminal Libel • R. v Simoes, reported in the Ottawa Citizen September 6, 2012 • Simoes sent “highly sexualized emails” about and posted a “racy dating site profile” of the victim • the victim had posted online a strongly negative review of Simoes’ restaurant • issues with respect to proof the accused was the person sending the emails and posting the profile • convicted - sentencing: November 8, 2012

40. From the Supremes • “An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy…” • “but nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest.” Justice Binnie WIC Radio Ltd. v. Simpson 2008 SCC 40

41. From the Supremes • Freedom of expression • Vigorous debate • Charter s.2(b) – “Everyone has… freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” • Protection of reputation • Personal integrity and privacy • The good reputation of an individual represents and reflects the innate dignity of the individual, a concept that underlies all the Charter rights

42. From the Supremes • “..the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online…” • “A review of recent defamation law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media.”

43. From the Supremes • “While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of the new communications media.” Chief Justice McLachlin Grant v. Torstar Corp. 2009 SCC 61

44. Issues to Watch • Does a new standard for defamatory character apply to the Internet and its various forms of social media? Baglow v. Smith • Is a sealing order available for a defamation case? - A.B. v. Bragg Communications • How will the various defenses play out in the context of the Internet? e.g. Alberta Adolescent Recovery Centre v. CBC • Whither Arthur Kent? 44

45. This presentation will be available for download. www.fieldlaw.com People Dan Carroll, Q.C. Presentations