Transcript The Internet & Defamation

NORTHERN ALBERTA RISK & INSURANCE MANAGEMENT SOCIETY
PRESENTS
Cyber Liability - Defamation
The Internet & Reputation
The New Frontier,or
The Wild West?
Dan Carroll, Q.C.
Field LLP
[email protected]
www.fieldlaw.com
MARIMS
March 9, 2011
Disclaimer
This presentation is intended for
general educational purposes only
and is not legal advice.
Consult your lawyer for advice
based on your situation and
circumstances.
The Internet
• “Universally” accessible
• Fast
– Instant send (careful there!)
– Instant receipt
•
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•
•
Variety of media: text, pix, video, audio
Not trustworthy
Indeterminate mass audience
Anonymous
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
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
• SCC argument: Crookes v.
Newton
• Is publishing a link
“publication”?
• Real time reports of the
questions from the Bench
and answers
• Choppy, confusing, no
context, no ascription,
cannot tell report from
comment
• http://www.slaw.ca/2010/12
/07/crookes-v-newton-livetweets-from-scc/
Evidence
“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)
Evidence, 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.”
http://www.canlii.org/en/on/onsc/doc/2010/2010onsc
6568/2010onsc6568.html
Three Paths to Cyber Liability
• Fail to do what you should
– Install firewalls
– Protect against transmitting viruses, spyware, etc.
• Do what you should not
– Criminal Code, s. 163.1(4): possession of child
pornography
– Anti-Spam law: S.C. 2010, c.23 (not in force yet)
– Harass/Breach privacy rights/Cyberbully
• Do what you may but in a way you should not
– Defamation
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 fails. Argument:
– 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”
$430k settlement reached in Love Twitter
lawsuit
“LOS ANGELES -- Courtney Love's 140 character
Twitter rants against a fashion designer are costing her
more than $430,000.”
“The singer has settled a lawsuit filed by Dawn
Simorangkir, who sued the Hole frontwoman in March
2009 accusing her of making false statements about
the designer and her past in a series of postings on the
microblogging site Twitter and Love's MySpace blog.”
Associated Press, 03.04.11, 01:48 AM EST
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.”
What is Defamatory?
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…”
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.”
• Context - 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 the person subject to
these comments – model Liskula Cohen - to
compel Google to disclose identity of the blogger
• Non-party blogger appeared anonymously through
counsel and argued:
– “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” and can support a defamation claim
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 Facebook case: both trial
level, both New York state
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 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 award and a higher
costs award 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 comin’ to town.
Do not get in his way.
Employers can be liable for employee acts,
both authorized and unauthorized.
To Stay out of the Sheriff’s way
Employee
• Be accurate.
Supervisor
• Check facts.
• Golden Rule: If you
wouldn’t like that said
about you, should it be
said at all?
• Does the statement
serve a journalistic
purpose or the public
interest?
• If an opinion, is it
honestly held?
• Is it too extreme in
content/expression to
be credible?
An Ounce of Prevention…
• Take Technical steps
– Block access to social media from work
– Monitor employees’ Internet access and use
• Educate Staff and Implement Policies
– Internet Usage Policy
– Social Media Participation Policy
• Supervise and Enforce the Policies
– Not only on a complaint basis - do spot checks
– Take appropriate disciplinary action
Internet Usage Policy
Policy Overview
We provide access to the vast information resources of the Internet to help you do your
job faster and smarter. The facilities to provide that access represent a considerable
commitment of firm resources for telecommunications, networking, software, storage,
etc. This Internet usage policy is designed, to help you understand our expectations for
the use of those resources in the particular conditions of the Internet, and to help you
use those resources wisely.
While we’ve set forth explicit requirements for Internet usage below, we'd like to start
by describing our Internet usage philosophy. First and foremost, the Internet for this
firm is a business tool, provided to you at significant cost. That means we expect you
to use your Internet access primarily for business-related purposes, i.e., to
communicate with clients and suppliers, to research relevant topics and obtain useful
business information. We insist that you conduct yourself honestly and appropriately
on the Internet, and respect the copyrights, software licensing rules, property
rights, privacy and prerogatives of others, just as you would in any other business
dealings. To be absolutely clear on this point, all existing firm policies apply to
your conduct on the Internet, especially (but not exclusively) those that deal
with intellectual property protection, privacy, misuse of firm resources,
sexual harassment, information and data security, and confidentiality.
Social Media Participation Policy
Policy Overview
We encourage communication among our employees, clients, partners, and others and Web logs (blogs), social networks, discussion forums, wikis, video, and other
social media - such as Twitter - can be great ways to stimulate conversation and
discussion. They're also invaluable tools for clients and potential clients who want to
learn more information about Field LLP and the areas of law we practice in.
This Social Media Participation Policy applies to:
• All blogs, wikis, forums, and social networks hosted or sponsored by Field LLP
• Your personal blogs that contain postings about Field's business, services,
employees, clients, partners, or competitors
• Your postings about Field LLP's business, services, employees, clients, partners,
or competitors on external blogs, wikis, discussion forums, or social networking
sites such as Twitter
• Your participation in any video related to Field LLP's business, services,
employees, clients, partners, or competitors, whether you create a video to
post or link to on your blog, you contribute content for a video, or you appear
in a video created either by another Field LLP employee or by a third party.
Even if your social media activities take place completely outside of work,
as your personal activities should, what you say can have an influence on
your ability to conduct your job responsibilities, your teammates' abilities
to do their jobs, and our business interests.
The Internet & Reputation
The Internet - New Frontier, or
The Wild West?
Both.
So be careful out there.
Dan Carroll, Q.C.
Field LLP
www.fieldlaw.com
[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
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