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The Internet and Defamation September 17, 2012 for Global TV Internet Dan Carroll, Q.C. Field LLP

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1 The Internet and Defamation September 17, 2012 for Global TV Internet Dan Carroll, Q.C. Field LLP

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. Consult your lawyer for advice based on your situation and circumstances.

3 Underpinnings The Law –Redistribution theory –Accountability theory Defamation –slander –libel

4 The Newest Medium: Internet “Universally” accessible Fast –Instant send (careful there!) –Instant receipt Variety of media: text, pix, video, audio Can be “photo-shopped” Indeterminate mass audience: worldwide “Viral” re-publication Author can be unidentifiable: anonymity Not trustworthy

5 Intersection: 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 (Reasons by Justice J.W. Quinn of the Ontario Superior Court of Justice, November 29, 2010)

6 Intersection, continued “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?

7 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

8 What is “publication”? Crookes v. Newton (recent SCC case) 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

9 What is Defamatory? Example, from Twitter Horizon Group Management Ltd. v. Amanda Bonnen (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.

10 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…”

11 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 New York, NY Supreme Court

12 12 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: 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. 12

13 13 Is the Internet to be treated differently? Maybe. appeal court: 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? 13

14 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.”

15 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

16 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 Court 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)

17 Who Sues? Politicians! Starts proceedings in San Francisco (U.S. Federal Court) to enforce the Alberta court order for access 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!

18 More Politicians Kent v. Martin: 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.”

19 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, who is now being sued, too. Kent has made nearly a dozen procedural applications to add defendants, get costs, etc. Litigation ongoing

20 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

21 Risk Assessment Even light innuendo can lead to a defamation suit, e.g. Mayor’s odds at trial 50/50. Though a defamatory implication, some truth in it: Mayor was a developer, he did support the closure group, and the group was given office space by a prominent property manager, Qualico Speech about matters of public interest (partially) protected by ‘fair comment’ defence ‘Responsible journalism’ might also protect, if meets certain responsibility criteria

22 Risk Assessment -Costs of prosecuting and defending this kind of action are very high & risk factors are many -Lots of requests by the plaintiffs to 3 rd parties for disclosure of information, e.g. to Twitter, ISP, hosting service, etc. -Attempts by plaintiff to keep action under seal -Even when speech protected by a defence, tough to succeed on a summary dismissal application as cases highly fact specific -Often the plaintiffs are self-represented and unable to pay costs if they lose

23 Risk Assessment Media continue to be at the forefront of defamation lawsuits, particularly by public figures Need for pre-publication sensitivity to risk Media bear the brunt of defense costs What are the defenses?

24 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? Truth/Justification Fair Comment Responsible Communication Privilege: Absolute, Qualified, Statutory

25 Defenses to Defamation Truth/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

26 Defenses to Defamation Fair Comment 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

27 Defenses to Defamation Responsible Communication 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

28 Responsible Communication Cusson v. Quan 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 a trained search and rescue team They weren’t.

29 Cusson v. Quan

30 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.

31 Cusson v. Quan Cusson sues. Eventually the Supreme Court decides case (with companion Grant v. Torstar), establishes a defense of “responsible communication on matters of public interest” Requirements?

32 Cusson v. Quan 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.

33 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

34 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

35 Malice in Practice, cont’d. 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 provided the defamation was serious, the defendant’s reputation was strong, and the defamatory publication inflicted major damages to reputation affecting livelihood

36 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 ($10) to exorbitant ($1.3 million: Hill v. Church of Scientology)

37 Unpredictable Awards In one 2006 Alberta case, Angel v. LaPierre, parents began 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).

38 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

39 Criminal Libel Many of the accused in these cases are mentally unstable, often fixated on the defendants and extremely litigious R. v. Knight -- 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.

40 Criminal Libel The nurse was Mr. Knight’s ex-wife. Knight continued harassing her. He was eventually charged with criminal libel under 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

41 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

42 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

43 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.”

44 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

45 Loss Prevention Employee Be accurate. Golden Rule: If you wouldn’t like that said about you, should it be said at all? If an opinion, is it honestly held and expressed credibly? Supervisor Check facts. Does the statement concern a matter of public interest? Is it fair comment or responsible journalism? Is it too extreme in content or expression to be viewed as an honest opinion?

46 This presentation will be available for download. People Dan Carroll, Q.C. Presentations

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