Transcript The Internet & Defamation

Law, Social Media, and
Freedom of Speech
February 1, 2013
for the Alberta Weekly Newspaper Association
Dan Carroll, Q.C.
Field LLP
[email protected]
www.fieldlaw.com
Disclaimer
This presentation is intended for
general educational purposes only
and is not legal advice.
Consult your lawyer for advice
specific to your circumstances.
Pop Quiz
1. What is the largest organism in the world?
2. How would you go about confirming (or not)
your answer?
3
The Answer to Question 1
4
World’s Largest Organism
The largest organism on earth is a fungus:
Armillaria ostoyae aka 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
5
The answer to Question 2?
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A Comparison
Fungus
• Network of mushrooms
joined by filaments
• Largest living organism
• Age: is measured in
millennia
• Indeterminate boundary
• Tastes good
• But kills
Internet
• Network of computers
joined by “wires”
• Largest manmade tool
• Age: is measured in
decades
• Seemingly everywhere
• Very useful
• But can destroy
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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?
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?
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,
10 2001)
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
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
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.
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”
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
15
a similar decision in Canada.
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
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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.
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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.
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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
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Internet.
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
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defamatory?
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.”
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
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)
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!
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.”
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…
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
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
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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.
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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
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profile
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
Defenses to Defamation
Lack 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
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
Defenses to Defamation
Qualified 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
Defenses to Defamation
Qualified 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
Defenses to Defamation
Qualified 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.”
Defenses to Defamation
Qualified 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.”
Defenses to Defamation
Fair 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
Defenses to Defamation
Responsible 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
Responsible Communication
Quan 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.
Cusson & dog
Responsible Communication
Quan 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.
Responsible Communication
Quan 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?
Responsible Communication
Quan 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.
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.
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
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
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)
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).
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.
Criminal Libel
• Many of the accused in these cases are
mentally unstable, often fixated on the
defendants and extremely litigious.
• R. v. Knight, 2009 ABCA 86 -- 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.
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.
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
• Sentenced to 90 days in jail!
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
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
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.”
From the Supremes
• “While established journalistic standards
provide a useful guide by which to evaluate
the conduct of journalists and nonjournalists 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
Issues to Watch
• Does a new standard for defamatory
character apply to the Internet and its
various forms of social media? Baglow v.
Smith
• How will the various defenses play out in the
context of the Internet? e.g. Alberta
Adolescent Recovery Centre v. CBC
• Whither Arthur Kent?
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Loss Prevention
Reporter
Editor
• Be accurate.
• Check the facts.
• If you wouldn’t want that
said about you, should it
go in the story?
• Does this serve a
journalistic purpose engage public interest?
• If an opinion, is it honestly
held?
• Is the content or
expression too extreme to
be credible?
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This presentation will be
available for download.
www.fieldlaw.com
People
Dan Carroll, Q.C.
Presentations
Links
http://www.scientificamerican.com/article.cfm?id=strange-but-true-largest-organism-isfungus
Bruni v. Bruni: http://canlii.ca/t/2dnn1
Barrick Gold Corp. v. Lopehandia: http://canlii.ca/t/1h7nd
Crookes v. Newton: http://canlii.ca/t/fngpv
Homosexuality/defamation:
http://www.abajournal.com/news/article/gay_label_is_no_longer_per_se_defamation_new_
york_appeals_court_says/
Thedirty.com lawsuit:
http://crimcourts.wordpress.com/category/ohio/sarah-jones/
Baglow v. Smith: http://canlii.ca/t/fmvmp
Kent v. Martin et al: http://canlii.ca/t/fsr21
CNR v. Google: http://canlii.ca/t/29x4p
York University v. Bell Canada: http://canlii.ca/t/25j8j
A.B. v. Bragg Communications: http://canlii.ca/t/fstvq
Links
Drumheller criminal libel:
http://www.drumhellermail.com/index.php/news/12141-libel-charges-resolved
Alberta Adolescent Recovery Centre v. CBC: http://canlii.ca/t/fppx6
Whitehead v. Sarachman: http://canlii.ca/t/fvfs1
WIC Radio v. Simpson: http://canlii.ca/t/1z46d
Quan v. Cusson: http://canlii.ca/t/27432
Astley v. Verdun: http://canlii.ca/t/21972
Angle v. Lapierre: http://canlii.ca/t/1mtmf
R. v. Knight: http://canlii.ca/t/22pj5
Drumheller criminal libel:
http://www.drumhellermail.com/index.php/news/12141-libel-charges-resolved
R. v. Simoes:
http://www.ottawacitizen.com/life/Restaurateur+gets+days+jail+criminally+libelling+author+r
eview/7560754/story.html