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The Internet & Reputation The New Frontier,or The Wild West? Dan Carroll, Q.C. Field LLP January 8, 2011.

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Presentation on theme: "The Internet & Reputation The New Frontier,or The Wild West? Dan Carroll, Q.C. Field LLP January 8, 2011."— Presentation transcript:

1 The Internet & Reputation The New Frontier,or The Wild West? Dan Carroll, Q.C. Field LLP January 8, 2011

2 The Internet “Universally” accessible Fast –Instant send –Instant receipt Variety of media: text, pix, video, audio Not trustworthy Indeterminate audience Anonymity

3 The Star Wars Kid An ordinary kid fooling with a video camera. The video is found by four classmates. They post it to the internet – It goes viral: over 20,000,000 viewings.

4 The Star Wars Kid “The parents of Ghyslain Raza, the Quebec teenager who became a celebrity this spring after classmates posted on the Internet a video of him mimicking a Star Wars character, allege that their son was so humiliated by the experience that he had to get psychiatric care.”

5 The Star Wars Kid “The revelation is made in a lawsuit his parents have filed against the families of four classmates they accuse of maliciously turning their son into an object of mockery.” Globe and Mail July 23, 2003 ology/parents-file-lawsuit-over-star-wars-kid- video/article1008338/

6 The Star Wars Kid “It is one thing to be teased by classmates in school but imagine being ridiculed by masses the world over.” “What happened to the Star Wars Kid can happen to anyone, and it can happen in an instant.” The Offensive Internet (2010) Levmore & Nussbaum

7 Twitter & Tweets in the Courtroom Russell Williams’ criminal case: sentencing hearing Journalists traumatized by lurid images racing to send Twitter tweets 140 characters – lose context, crude & unnecessary comment and description m/news/canada/Impact+me dia+troubling+lawyers/4153 725/story.html m/news/canada/Impact+me dia+troubling+lawyers/4153 725/story.html SCC argument: Crookes v. Newton Is publishing a link “publication”? Real time reports of the questions from the Bench and answers Choppy, no context, no ascription, cannot tell report from comment /07/crookes-v-newton-live- tweets-from-scc/ /07/crookes-v-newton-live- tweets-from-scc/

8 Elements of Defamation Publication Of a statement that identifies the complainant Where the statement is such that it would lower the reputation of the complainant in the mind of a right thinking citizen To the “world” Can be words or pictures, must point to or refer to complainant An objective test, reputation: “He is a thief and a liar” vs. “He is a lawyer.”

9 What is Defamatory? Example from Twitter Courtney Love - sued by a fashion designer Tweet: she’s a “drug-pushing prostitute with a history of assault and battery” Motion to dismiss by Love –Satire/Hyperbole – not statement of fact but comment –The medium lends itself to this and “context and tenor negate the impression the author seriously is maintaining an assertion of fact”

10 What is Defamatory? Another Example from Twitter Horizon Group Management Ltd. v. Amanda Bonnen –Amanda: tenant –Sued by Horizon: management company 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.” Huh?

11 What is Defamatory? Example from Facebook She “acquired AIDS while on a cruise to Africa…While in Africa she was seen fucking 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 screw a baboon which caused the epidemic to spread” She “got aids when she hired a male prostitute who came dressed as a sexy fireman…”

12 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 –“puerile attempt by adolescents to outdo each other” –“a vulgar attempt at humor” –But did “not contain… statements of fact.” Context or setting surrounding the communication was one factor

13 What is Defamatory? Another Example: a blog on Google “How old is this skank? 40 something?She’s a psychotic, lying, whoring,still going to clubs at her age, skank.” “I would have to say the first-place award for ‘Skankiest in NYC” would have to go to… “Skank”: “one who is disgustingly foul or filthy and often considered sexually promiscuous. Used especially of a woman or girl.”

14 What is Defamatory? Another Example: a blog on Google, continued Application made by the object of these comments – model Liskula Cohen - to compel Google to disclose identity of the blogger Non-party blogger appears anonymously through counsel and argues –“non-actionable opinion or hyperbole” –“it is ‘trash talk’ ubiquitous across the Internet…” Court finds from context (including pictures and captions) that the words are not “loose and vague insult”

15 What is Defamatory? Another Example: a blog on Google, continued “In that the Internet provides a virtually unlimited, inexpensive and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored.” Contrast to the previous case.

16 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 Truth/Justification Fair Comment Responsible Communication

17 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 –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

18 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

19 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

20 Malice Defeats some of the Defenses to Defamation MALICE defeats fair comment, responsible communication (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 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 defeats these defenses and results in a higher damages awards and higher costs awards against a defendant

21 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

22 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

23 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.”

24 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

25 Conclusion It may be the Wild West but the Sheriff is commin’ to town. Do not get in his way.

26 To Stay out of the Sheriff’s way Journalist Be accurate. If you wouldn’t like that said about you, should it go in the story? If an opinion, is it honestly held? Editor Check facts. Does the statement serve a journalistic purpose – public interest? Is it too extreme in content/expression to be credible?

27 The Internet & Reputation The New Frontier,or The Wild West? Both. So be careful out there. QUESTIONS? Dan Carroll, Q.C. Field LLP

28 Resource links A.Star Wars Kid a)Globe and Mail articleGlobe and Mail article b)The Offensive InternetThe Offensive Internet B.Tweets in the Courtroom a)National Post article re Russell WililamsNational Post article b) re Crookes v. C.Courtney Love defamation suit a)NY Times articleNY Times article b)History and pleadings documentsHistory and pleadings documents D.Horizon Group Management v. Amanda Bonnen a)History, pleadings and dismissal documentsHistory, pleadings and dismissal documents E.Finkle v. Facebook (defamation vs cyberbullying) a)History, pleadings and dismissal documentsHistory, pleadings and dismissal documents F.Liskula Cohen a)History, pleadings and orderHistory, pleadings and order G.WIC Radio Ltd. v. Simpson, 2008 SCC 402008 SCC 40 H.Grant v. Torstar Corp, 2009 SCC 612009 SCC 61 I.Journalists Legal Guide, 5 th editionJournalists Legal Guide

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