With the huge growth of the Internet and social media over the last ten years, comments that would normally never have gone beyond a small social circle in the past, now appear regularly on Facebook, Twitter, chatrooms and other platforms in increasingly foul and objectionable forms.
We all now understand, or should understand, the extent to which everything we now post on-line has permanent and wide-reaching effects. The ability to post comments in many cases while remaining anonymous has encouraged some people to write defamatory comments when they would think twice (if not more) about doing so if they had to identify themselves. Personal attacks which also usually amount to defamation appear to be growing in frequency. And it is not just school children and teenagers who are involved in this. Anonymous posters will often only be identified by the website owner when faced with a court order to disclose the information, and then, the information is still insufficient to actually identify the individual involved.
From a legal perspective, what can you do if you have been or are on the receiving end of defamatory statements, you know the defamer’s identity, and you have been damaged by those statements? I say “damaged” because although you do not need to prove that your reputation has been damaged by a false statement about you in a defamation lawsuit, the cost involved in suing the defamer can be so high that the damage caused to you should probably be more than hurt feelings, embarrassment or humiliation to make legal action worthwhile. But a lawsuit is always an option if you feel strongly enough about your good reputation.
Certainly there are other options a victim can consider as an alternative to a lawsuit. Once such option is to have a lawyer’s letter sent to the defamer demanding he or she take down the offending comment and “cease and desist from making any further false statements” or legal action will be taken. In many cases, this will stop the defamation (although it may not stop the harassing or bullying behaviour that could follow, which may be a matter for the authorities and/or the website administrators).
Another option is to contact the website provider and ask them to remove the offending post. All of these service providers have information on their websites setting out the process you will have to follow. Unfortunately, some of these service providers will tell you that they require a court order and then will consider what the order says before they remove defamatory content. It does appear that, given some of the specific incidents in the news in the last year or so, big companies like Google and Facebook have become more concerned about the use of their services to defame, bully and harass, and it may become easier to remove the objectionable comments in the future than it is now. Others may refuse to take any action, relying on US law and the constitution (most of these websites appear to be based in the US), and going so far as to ignore court orders from Canadian courts, unless a US court orders them to comply. This may change in future but at present there are significant hold-outs and people continue to get away with what amounts to character assassination.
Website providers in Canada are subject to a stricter view of how free speech ought to be balanced against the rights of individuals not to be defamed. The words of an Ontario court in a recent libel case may suggest the direction Canadian courts will take when faced with a claim in internet defamation:
There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none. Manson v. John Doe, 2013 ONSC 628 (CanLII)
Unfortunately for the plaintiff in this Ontario case, although the court awarded him total damages of $150,000 plus costs, the defendant remained anonymous. What is also of concern for potential plaintiffs in such cases, Google did provide the subscriber information to the plaintiff but this information was not sufficient to enable the plaintiff and his lawyer to identify the defendant. This is a problem that can probably only be addressed by service providers like Google at the time of subscription.
The Internet has been a wonderful invention but, as with many things, in the wrong hands it can also be misused and abused. If you have questions about defamation (whether libel (written) or slander (verbal)), contact us.