Transcript The Internet & Defamation

The Internet & Reputation
The New Frontier,or
The Wild West?
Dan Carroll, Q.C.
Field LLP
[email protected]
January 8, 2011
The Internet
• “Universally” accessible
• Fast
– Instant send
– Instant receipt
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Variety of media: text, pix, video, audio
Not trustworthy
Indeterminate audience
Anonymity
The Star Wars Kid
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An ordinary kid fooling with a video camera.
The video is found by four classmates.
They post it to the internet – youtube.com
It goes viral: over 20,000,000 viewings.
http://www.youtube.com/watch?v=HPPj6viIBmU
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.”
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
http://www.theglobeandmail.com/news/techn
ology/parents-file-lawsuit-over-star-wars-kidvideo/article1008338/
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
•
Twitter & Tweets in the
Courtroom
Russell Williams’ criminal
• SCC argument: Crookes v.
case: sentencing hearing
• Journalists traumatized by
lurid images racing to send
Twitter tweets
• 140 characters – lose
context, crude &
unnecessary comment and
description
• http://www.nationalpost.co
m/news/canada/Impact+me
dia+troubling+lawyers/4153
725/story.html
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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
http://www.slaw.ca/2010/12
/07/crookes-v-newton-livetweets-from-scc/
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.”
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”
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?
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…”
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
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.”
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”
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.
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
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
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
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
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
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
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 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
Conclusion
It may be the Wild West
but the Sheriff is commin’ to town.
Do not get in his way.
To Stay out of the Sheriff’s way
Journalist
• Be accurate.
Editor
• Check facts.
• If you wouldn’t like that
said about you, should
it go in the story?
• Does the statement
serve a journalistic
purpose – public
interest?
• If an opinion, is it
honestly held?
• Is it too extreme in
content/expression to
be credible?
The Internet & Reputation
The New Frontier,or
The Wild West?
Both.
So be careful out there.
QUESTIONS?
Dan Carroll, Q.C.
Field LLP
[email protected]
Resource links
A.
B.
C.
D.
E.
F.
Star Wars Kid
a)
Globe and Mail article
b)
The Offensive Internet
Tweets in the Courtroom
a)
National Post article re Russell Wililams
b)
Slaw.ca re Crookes v. Newton
Courtney Love defamation suit
a)
NY Times article
b)
History and pleadings documents
Horizon Group Management v. Amanda Bonnen
a)
History, pleadings and dismissal documents
Finkle v. Facebook (defamation vs cyberbullying)
a)
History, pleadings and dismissal documents
Liskula Cohen
a)
G.
H.
I.
History, pleadings and order
WIC Radio Ltd. v. Simpson, 2008 SCC 40
Grant v. Torstar Corp, 2009 SCC 61
Journalists Legal Guide, 5th edition