DEFAMATION RISK INCREASES FOR SOCIAL MEDIA USERS

A decision from the British Columbia Supreme Court (Pritchard v. Van Nes, 2016 BCSC 686) should provide a warning to all those who view social media as a platform to vent their frustrations.

Background

This decision arises from conflict between neighbors that escalated substantially over a number of years.

The Defendant neighbor, Van Nes, took to Facebook to “vent” about her neighbor, Pritchard, making a number of posts on Facebook calling her neighbor a “nutter” and a “creep” and using a system of cameras and mirrors to keep her backyard and her young children under 24 hour surveillance.  In total, the court found that the Defendant’s initial posts and the comments made by her friends to these posts bore the meaning that the Plaintiff was a pedophile.

Van Nes had more than 2000 Facebook friends.  In addition, she had set her privacy settings to public to allow for her posts to be viewed by all Facebook users.

While the posts were only on the Defendant’s Facebook page for roughly 27½  hours before being removed, there were a number of comments posted by the Defendant’s Facebook “friends”, with these friends’ comments containing more explicit denunciations of Pritchard’s alleged behavior.

In addition, a number of the Defendant’s Facebook friends “shared” the Defendant’s posts on their own Facebook pages.  One of the Defendant’s Facebook friends copied one of the Facebook posts and emailed it to the principal of the school where Pritchard was employed as a teacher.

The Defendant did not defend the action so default judgment was entered.  The court was then tasked with assessing damages, and ultimately awarded $50,000 in general damages for defamation plus $15,000 for punitive damages.

Defamation x 3

The court found there were three methods by which the defamation took place:

  1. through Van Nes putting her own remarks on her Facebook page;
  2. through republication of Van Nes’ remarks by her Facebook friends sharing them on their own Facebook pages and, in one case, by emailing her comments to Pritchard’s employer; and
  3. through the comments posted by Facebook friends to Van Nes’ Facebook posts.

In analyzing these three methods of defamation in this case, the court raised interesting issues for cyber-defamation, especially in the context of social media.

First, it addresses whether social media facilitates or encourages the distribution of defamation.

Second, it broadens the risk of incurring liability for defamatory comments made by others on your social media account

Does Social Media Facilitate Distribution of Defamation?

In this case, the court found that Facebook in particular facilitates the distribution of comments, photographs, videos and links:

[83]      In my view the nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow.  This is particularly true in the case of the Defendant, who had no privacy settings in place and who had more than 2000 “friends”.  The Defendant must take must be taken to have implicitly authorized the republication of her posts……

Arguably, these comments could equally apply to many other social media platforms that electronically connect groups of people with an unrestricted forum to express opinions and statements openly.

Applying the court’s reasoning in this case, if you are choosing to express yourself on such a social media platform, you are doing so with the intention and anticipation that this expression will be disseminated, at the very least, to your connections on this forum, and quite likely beyond that.

In addition, you can be found to have implicitly authorize republication of your posts beyond your own immediate circle of connections on the social media site.

This implicit authority to republish can have significant consequences if your posts contain anything defamatory.

Does Social Media Increase Your Risk of Liability for Comments of Others?

The court then tackled whether Van Nes was liable for the defamatory remarks posted by her friends as comments on her Facebook page.

It recognized that liability for third-party defamatory comments on one’s personal account, whether on Facebook or another Internet-based platform, is still an emerging legal issue in Canadian law.

Recent cases, however, have established that a defendant can be found to have adopted the third party defamatory material as their own if the following three elements are established:

  1. actual knowledge of the defamatory material posted by the third-party,
  2. a deliberate act that can include inaction in the face of actual knowledge, and
  3. power and control over the defamatory content.

In this case, the court loosened the first of these criteria for users of social media accounts.

It said there ought not to be a legal requirement for a defendant having actual knowledge of the existence of defamatory comments by her friends.  Rather, in this case, Van Nes ought to have anticipated such posts would be made.

The court came to this conclusion for two reasons: the nature of a social media platform, and the content of Van Nes’ contribution to the posts.

The court found that this combination created a “reasonable expectation” that further defamatory statements would be made by Van Nes’ friends, and that she should share in the responsibility for these friends’ statements, whether she was aware of them or not.

 [111]   …..The user hosting the page of the social medium such as Facebook … is providing a form for engagement with a circle of individuals with whom you share some degree of mutual familiarity…

[112]    … [Van Nes] ought reasonably to have expected her “friends” to make sympathetic replies.  The “friends” comments were not unprovoked reactions; they were part of the conversation.  And then, when they did comment, [Van Nes] – far from being a passive provider of an instrument for comment – continued as an active participant through making replies, prompting further comment.  Those replies add fuel to the fire, compounding the chances of yet more defamatory comments be made.

[113]    In other words, I would find that the nature of the medium, and the content of [Van Nes’] initial posts, created a reasonable expectation of further defamatory statements being made.  Even if it were the case that all she had meant to do was “vent”, I would find that she had a positive obligation to actively monitor and control posted comments.…  The defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them.

The Takeaway

It is important to note that in discussing the above, the court was very clear to distinguish the social media users from the social media platform providers.  Therefore, the application of this case as a precedent on which to find liability for third party comments on the “reasonable anticipation” that such comments would be made, whether you are aware of them or not, is limited to users of social media only.

That said, this decision should set alarm bells clanging for social media users.

At the very least, it places a heavier burden of monitoring your account for defamatory replies, reactions or comments to the material you put on your social media page.  On a social media platform, a user can no longer avoid liability for defamatory third party responses to their posts by ignoring their social media page.  Even swift identification of such defamatory third party content, and perhaps swift removal, may not be enough to avoid liability.  The court specifically found that Van Nes ought to “share responsibility” with the third party posters, even if she was unaware of the defamatory third party comments.  She ought to have reasonably expected it.  This clearly expands the potential for liability of social media users for third party defamatory comments.

Facebook Family Feud Attracts Defamation Damages

The recent decision in Kumar v Khurana 2015 ONSC 7858 confirms that courts take a dim view of family members who turn to the internet to air their dirty laundry.

Background

The plaintiff, Hardev Kumar, was a retired immigration consultant living in Toronto but originally from India.  The plaintiff’s parents remained in India and were cared for by the plaintiff’s brother, who inherited the parents’ land following their death.

The defendant is the plaintiff’s nephew who took to Facebook to post three statements about his uncle, whom he referred to as “David”, including:

David is in need of money.  He never planned for retirement.  He is looking for payback for sponsoring family members to Canada again, not my problem.

He also sent the same private message via Facebook two times to the plaintiff’s daughter, stating:

Kumar is stating I called him a terrorist and extortionist.  I believe he resorted to terrorist style tactics by sending hate mail to both me and his brother in India and having others make threatening phone calls on his behalf…….

As far as being an extortionist, I believe he is and will continue on the same path unless someone puts a stop to him……

Kumar is a very angry and greedy man……..

The court found these Facebook messages to be akin to private emails.

No defence was filed to this action, so default judgment was entered against the defendant.  This is unfortunate, as this removed any analysis of possible defences such as fair comment.

Internet Publication

The evidence before the court on publication of the defamation is that immediate family members, such as the plaintiff’s daughters and son, read the Facebook publications as did up to 35 members of the plaintiff’s extended family.

There was no evidence of the actual number of views to the defendant’s Facebook page containing the defamatory words.  There was also no evidence as to the status of the defendant’s Facebook page, such as whether it was restricted to his friends only or whether it was open to the general public.  An open page would clearly have the potential to extend publication to a broader audience than a closed page or one limited to the defendant’s friends only.

Nonetheless, the court appeared most concerned that the defamatory statements were posted on Facebook, quoting from the Ontario Court of Appeal decision in Barrick Gold v Lopehandia 2004 CanLII 12938:

Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching.  It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed.

… Internet defamation is distinguished from its less pervasive cousins, in terms of it potential to damage the reputation of individuals and corporations, but the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility.  The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

It is ironic the court relied on the above quote given both the absence of anonymity and the lack of evidence in this case regarding the “immediate worldwide ubiquity and accessibility”.

While clearly concerned that the statements in question were posted on the internet via Facebook, the court was relatively restrained in awarding the plaintiff a rather modest general damages award of $15,000.  To this, the court added a further $15,000 in aggravated damages, having found the defendant to be motivated by ill will.

The Takeaway

This case stands apart from other internet defamation cases in that it does not have the element of anonymity that is often seen with internet defamation.  It also appears to have limited publication, confined possibly to within a group comprised of family and friends.

Nevertheless, courts have repeatedly expressed strong concern with defamation published on the internet, and this case is no exception.  Even with the relatively modest general damages, one wonders if the general damages would have been the same if the defamation was published as a letter to the same 35+ family members.

Defamation and Intrusion on Seclusion – Defending One with the Other

In my last blog post, I posed the following question:

In cases where the plaintiff claims defamation and intrusion on seclusion, would the established defences to defamation, such as fair comment, satisfy “lawful justification” for invading someone’s private affairs or concerns?

The answer to this is Yes, according to the court in Chandra v. CBC, 2015 ONSC 5303.

Background

Chandra was a professor in the Faculty of Medicine at Memorial University of Newfoundland.  He brought a defamation action against the CBC, following the broadcast of a program called “The Secret Life of Dr. Chandra”, which alleged he fabricated research results, with these results then used as the basis for published scientific studies and reports.

Following the Ontario Court of Appeal decision in Jones v. Tsige, 2012 ONCA 32, Chandra amended his action to also add a claim of intrusion on seclusion.  The basis of this claim was the method of investigation used by the CBC in preparing its documentary, which resulted in a broadcast that contained private information.

The question before the court was “Can a plaintiff who has sued a broadcaster for defamation in connection with a television programme also maintain a claim for general damages for invasion of privacy?

Defamation & Intrusion on Seclusion – Shutting the Back Door

While Chandra’s claim for intrusion on seclusion focussed on the reporter’s method of investigation (rather than on the specific television broadcast), the court found that the journalist’s “activities and practices lie at the heart of claims for the protection of freedom of expression and freedom of the press and, as a result, claims for the protection of privacy have to be reconciled with, and even yield to, competing claims for protection of freedom of expression and freedom of the press.”

It is through this lens, then, that the court considered the uncharted territory of how the pleaded defamation defences of fair comment and responsible communication affected the analysis of the tort of intrusion on seclusion, which to date has no established defences.

To establish intrusion on seclusion, one must show the intrusion resulted from “unlawful conduct”.  It is important, therefore, that the court in Chandra found, absent malice, the collection of private information for journalistic purposes is lawful.  In doing so, the court restricted a plaintiff from advancing a claim for intrusion upon seclusion “in circumstances analogous to those in which a media defendant can establish fair comment or responsible communication.

This is a significant curtailment of the tort of intrusion on seclusion when it is based on facts that also give rise to a defamation claim.  The court, in essence, said a defence in defamation cannot be circumvented by a plaintiff claiming intrusion on seclusion based on the same set of facts as grounding an alternative claim in defamation.  It has shut the back door.

This curtailment is, of course, only in circumstances where the defamation defences can be established.  If these defences are not available, or if they are not successful, then the lawfulness of the conduct will remain in issue for the purpose of a claim for intrusion on seclusion.

Nonetheless, this decision is noteworthy for a number of reasons.

The breath of application of this decision is, arguably, not restricted to journalists.  If you are collecting private information for “journalistic purposes” (with this term yet to be defined by the court) and can establish a defence of fair comment, such collection would be considered lawful conduct and therefore not an intrusion on seclusion.

It is interesting, to say the least, that the court in Chandra has used defences in one tort (defamation) to determine what is not “unlawful conduct” in another tort (intrusion on seclusion).  It remains to be seen how far this analysis will apply.  Will it be restricted to actions in which the plaintiff claims both defamation and intrusion on seclusion?  What if the plaintiff only brings a claim in intrusion on seclusion against a defendant (media or otherwise), even though a claim in defamation could also have been pleaded?  Can the defendant in such a case plead defamation defences such as fair comment or responsible communication even if defamation is not pled?

I expect these questions, and others, will be before the courts soon.

Is defamation an invasion of privacy?

A new decision from the Ontario Superior Court of Justice raises an interesting question:  Can defamatory publications also be a tort of invasion of privacy?

Facts

The decision in Craven v Chmura, 2015 ONSC 4843 is an assessment of damages for the plaintiffs following a successful jury trial in which the jury held the defendant liable in defamation and also in the tort of intrusion on seclusion.   The case arose from a very tragic set of facts.

The plaintiffs are Julie Craven and her father John Craven.  In 2006, Julie Craven’s estranged husband killed their 8 year old son and then held Julie hostage.  He was shot and killed by police before he could kill Julie with the knife he was holding to her throat.

A year later, the estranged husband’s brother in law, Richard Chmura, set up a website on which he posted poems and other writings as well as videos which the court found were meant to “vilify and humiliate” Julie and John Craven.  The court did not provide details of the publications posted but described them as “despicable, heartless and outrageous” and noted that many of the statements sought to blame Julie Craven for what happened.

Julie and John Craven brought a successful action against Chmura, alleging defamation and intrusion on seclusion.  As the matter proceeded as a jury trial, there is no written decision providing any analysis of the findings.  The post trial costs decision does confirm that before putting the matter to the jury, the judge determined as a question of law that 30 statements on the website were capable of being defamatory of Julie and John Craven, and that two actions of Chmura were capable of giving rise to a claim for intrusion on seclusion.

We do not know from this decision if these two actions overlap with the 30 statements on the website that were capable of being defamatory.  None the less, it does give pause to consider whether defamation can also be an invasion of privacy in the form of intrusion on seclusion.

Intrusion on Seclusion

Intrusion on seclusion is a relatively new tort in Canada.  It was adopted as a tort in Ontario in decision of Jones v. Tsige, 2012 ONCA 32, wherein the defendant bank employee was found to have looked at the banking records of her ex-husband’s girlfriend without authorization or valid reason.

In considering whether this constituted an invasion of privacy and whether the courts recognize a common law tort of invasion of privacy, the court found “Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights.” [at para 15].

It also noted a leading American academic article which concluded that invasion of privacy was actually four separate torts with a common theme of privacy but with separate elements and protecting separate interests.  These four privacy torts were identified as:

  1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

On the facts before the court in Jones v Tsige, it determined that the defendant’s actions constituted a tort of breach of privacy in the form of an intrusion on seclusion.  The court confirmed the elements required to establish intrusion on seclusion are:

(a)          the defendant’s conduct must be intentional or reckless;

(b)          the defendant must have invaded the plaintiff’s private affairs or concerns;

(c)          this invasion must be without lawful justification;

(d)          a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

Defamation and Intrusion on Seclusion – Distant relatives or close cousins?

It is not entirely unexpected to see defamation and breach of privacy pleaded together in a cause of action.  Indeed, in its analysis of the existing torts that protect aspects of privacy, the court in Jones v Tsige quoted from the seminal Supreme Court of Canada defamation case Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130, wherein Cory J. stated, at para. 121: “reputation is intimately related to the right to privacy which has been accorded constitutional protection”.

That said, one would expect the breach of privacy torts in the form of public disclosure of embarrassing private facts about the plaintiff, or publicity which places the plaintiff in a false light in the public eye would be a more likely claim to be brought along with a defamation claim.  We do not, however, have either of these torts established in Canada.  As intrusion on seclusion is the only common law breach of privacy tort that has been adopted in some jurisdictions in Canada, it is not surprising that the first cases combining claims defamation and the tort of breach of privacy have been brought as intrusion on seclusion.

We can expect to see more cases combining defamation and breach of privacy, in the on-line context and in print.  With this, we can anticipate interesting developments in the common law of intrusion on seclusion, which is still in its infancy.  There is no decision in Canada confirming defences to the tort.  There is no guidance as to what will constitute “lawful justification” for invading someone’s private affairs or concerns.  In cases where the plaintiff claims defamation and intrusion on seclusion, would the established defences to defamation, such as fair comment, satisfy “lawful justification” for invading someone’s private affairs or concerns?  Truth is a defence to defamation.  Would truth be a “lawful justification” for invading someone’s private affairs or concerns?  We will have to see how the courts grapple with this when considering defamation and intrusion on seclusion side by side.

The Snippet: Can you be defamed by on-line search results?

The latest example of on-line communication pushing and expanding Canadian defamation law can be found in the recent decision of Niemela v. Malamas, 2015 BCSC 1024 where the court considers the question: Can you be defamed in a snippet?

For those not familiar with the term, a snippet is the text that accompanies the URLs listed in internet search results.

Background

Niemela brought an action brought against Google, seeking an injunction to compel Google Inc. to block from the global search results 146 URLs from websites contain defamatory comments about him.  Google had already voluntarily agreed to remove the 146 URLs from its Canadian search engine (google.ca), but Niemela wanted the URLs removed from Google search engines world-wide.

Google sought to have the matter dismissed summarily, and in this context the court had to consider whether Google was the publisher of the text found at URLs identified in the snippets.

How and why are snippets generated?

Integral to the court’s decision are the following facts:

  • snippets on Google’s website are generated automatically through the use of a computer algorithm in response to search terms typed by a user.
  • Google’s proprietary algorithm ranks search results in accordance with their probable perceived relevance to users.
  • search results generated by the algorithm continuously updated and may vary from minute to minute.
  • Google also maintains different search platforms for different countries and therefore search results may vary from platform to platform and country to country.
  • Google’s search platforms provide a means for users to locate websites hosted by third parties that may be of interest to the user, based on their search criteria.
  • a single page of search results generally displays 10 results with hyperlinks to third-party websites accompanied by snippets of text from those sites.
  • Google does not promote or endorse particular search results and does not recommend search results for commercial gain.

The court noted that there were hundreds of millions of active websites on the Internet and trillions of webpages, and accepted that such a vast amount of material cannot be successfully navigated without search engines, such as Google.  It said that without snippets, which get a sample of the text in which the search terms are imbedded, using the Internet would be much more difficult and certainly much more time consuming.  It would require a user to click on each URL to access the hyperlinked webpage and examine it to determine where it was relevant to their particular search.

Is a search engine “publishing” snippets?   Likely not, but…..

One of the main focuses of the court’s analysis in Niemela was whether Google, as a search engine, published the snippets generated in its search results.  This was a pivotal determination as one cannot be found liable for defamation without having published the alleged defamatory statement.

While defamation by way of snippet had not yet been considered in Canada, the court was cognizant of the English decision in Metropolitan International Schools Ltd. v. Designtechnica Corpn, which held that liability in defamation for publication of a snippet required a mental element.  The court in that case found the generation of search results and snippets by an automated process could not constitute knowing involvement in the process of publication of the relevant words.

This “passive instrument” test had been adopted in British Columbia in Weaver v. Corcoran in the context of reader comments posted to an on-line newspaper article.  In that case, the court determined that a newspaper can be considered to be in a passive instrumental role in the dissemination of reader postings and comments until awareness of said comments occurs.  It held that it was not reasonable to expect the newspaper to vet thousands of reader comments for defamatory content, and without awareness, the words were not deliberately published by the paper.

The court in Niemela found that this reasoning applied “all the more” to a search engine that automatically trawls trillions of webpages in seconds.  Because Google was not aware of the snippets through its search algorithm, nor can it realistically be so aware, it is merely a passive instrument and not a publisher of snippets.

…..the cautionary note

The court however did specifically emphasize that it was not asked to consider whether Google could be a publisher of snippets and search results after notice of defamatory content.  Such notice could, and likely would, change Google’s position from passive instrument to knowledgeable publisher.

How does this change Canadian defamation law?

On-line defamation law in Canada is slowly developing a body of case law accepting the knowledge-based component to publication.  We have seen this in Weaver v Corcoran and now in Niemela v Malamas.  This is bringing Canadian law in line with other jurisdictions, such as the UK.

While some might argue this is a sensible progression of the law in Canada, it does keep Canada out of line with the statutory protection afforded to internet service providers in the United States, where the Communications Decency Act exempts ISPs from being considered publishers of defamatory content from another content provider.  No doubt, ISPs would prefer the law in Canada to develop in a similar fashion.  While Niemela offers some protection, we are still quite some way from the American position here in Canada.

Is it Possible to Defame the Anonymous?

The “rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar” world of internet political blogging was centre stage in the recent decision of Baglow v Smith, 2015 ONSC 1175, wherein the court had to decide whether a blogger operating under a pseudonym can be defamed.

The Background

The plaintiff was John Baglow, who blogged under the name Dr. Dawg on Dawg’s Blawg, a left-wing political public interest blog he owned and operated.  He also commented on other political message boards and in newspaper opinion pieces.  Dr. Dawg’s opinions included opposition to Canada’s role in the war in Afghanistan and support of the repatriation of Omar Khadr from Guantanamo Bay to Canada.

The first two defendants were Mark and Connie Fornier.  The Forniers were the owners and moderators of an internet message board called Free Dominion, which supported conservative positions including respect for Canada’s foreign policy and support for the war on terror.

The third defendant was Roger Smith, who blogged and/or commented on both Free Dominion and Dawg’s Blawg under the pseudonym Peter O’Donnell as well as other pseudonyms, including the far more imaginative Jolly Old Saint Knickerless.  Smith’s political leanings were more in line with the Forniers’ and other right-wing political supporters.

Baglow sued the Forniers and Smith over a blog posted by Smith on the Free Dominion site.  Smith’s post referred to Dr. Dawg as “one of the Taliban’s more vocal supporters.”

The Issue – Was Baglow identified in the statement?

The defendants argued that the statement in question did not identify the Plaintiff, John Baglow, and therefore could not be defamatory of him.

This argument addresses a fundamental component in the law of defamation.  Identification of the plaintiff in the defamatory statement is a one of the three elements[1] that a plaintiff must establish to succeed in a claim for defamation.

How does this work, then, in the blogosphere where people often communicate anonymously under a pseudonym?  Where defamatory words refer only to an on-line pseudonym, who is defamed?  Are you (the person, not the pseudonym) defamed or are you immune from being defamed because you are hidden behind the mask of anonymity?

Connecting the Dots: Anonymity to Identification

In Baglow v Smith, the court found that John Baglow was sufficiently identified in the defamatory statement.

The court appears to have made this finding largely on the basis that Baglow made no efforts to hide the fact that he blogged under the name Dr. Dawg.  He had published opinions in other venues, including two dozen articles in the National Post Full Comment section, which he identified himself as the blogger Dr. Dawg.

There were references on other political on-line message boards wherein Baglow was identified as Dr. Dawg.  Although the court does not indicate how many of references existed, one of the references was posted in 2006.  This is 4 years before the Smith post in question.

The court also noted that there were ten prior references on the Free Dominion message board to John Baglow being Dr. Dawg.  The court does not provide the dates for all of these prior references but does say that one was in 2009 (a year before the Smith post in question).  This is particularly relevant as the court heard evidence from Connie Fornier that articles posted on Free Dominion had a “very short time span to catch a reader’s attention” as articles move down the message board page as new posts were made.

Nevertheless, the court found that “some commenters and readers of Free Dominion would know that [John Baglow] is Dr. Dawg”.

This finding is troubling.  It assumes that readers of the defamatory comment in question either:

  1. read at least one of the previous entries on Free Dominion that identified Baglow as Dr. Dawg; and/or
  2. was a reader of the National Post, and in particular read one of John Baglow’s articles in the National Post Full Comment section; and/or
  3. read John Baglow’s posts on other message boards.

Perhaps the all, or part, of the above various posts was sufficient to make John Baglow’s identity as Dr. Dawg notorious enough among readers of Free Dominion.  Perhaps not.

It would have been far easier, and in my view more sound, for the court to find that Baglow was identified through the totality of the blog entry in question, including the comments posted in reply.

While the blog entry posted by Smith only referenced Dr. Dawg, a comment posted in reply to the blog by a user identified as Ms. Mew stated “Baglow has already won one legal action against a similar libelous claim.  This will make two.”

Ms. Mew was another pseudonym used by Baglow.  So, while the defendant Smith did not identify Baglow in his blog entry, Baglow (through his Ms. Mew pseudonym) identified himself by reference in the reply comment.

The defendant Fourniers could have removed the Ms. Mew comment and therefore retained the relative anonymity of Baglow as Dr. Dawg.  Ironically, Connie Fournier testified that had she not known that Ms. Mew was John Baglow, she would have removed the Ms. Mew comment because it identified him.  In other words, she made the choice to leave confirmation of Dr. Dawg’s real identity on-line in close proximity to, and associated with, the defamatory words.

The question is…. Are you really anonymous?

In the end, the court concluded that Baglow’s name was sufficiently linked to the Dr. Dawg on-line pseudonym so as to make it known to readers that the defamatory comments about Dr. Dawg identified Baglow personally.  It could make this finding because Baglow made no effort to hide his real identity.  He openly identified himself as his on-line pseudonym.  His name was linked to Dr. Dawg by others in the political blogosphere.

For those who operate more firmly behind the mask of an on-line pseudonym, the result would likely be different.  Even if one’s real identity is openly linked with the pseudonym, at least in the circles of those who would be likely readers of the statements in question, this may not be enough for a court to find one’s own name sufficiently identified in the circumstances.

Contrast the result in Baglow v Smith with that in Ramar Construction v Seguin (previously blogged on The Reputation on March 25, 2015).  While Ramar Construction did not involve pseudonyms, the court did have to determine whether the Ramar was sufficiently identified in defamatory statements.  It found that a sign posted in the window of the defendant’s home stating “toxic mold not in sale agreement” did not identify Ramar Constuction as the builder, and presumably seller, of the home even though the court heard evidence that it was well known among those in the local construction and real estate industry that the homes on the defendant’s street were built by Ramar Construction.

In my view, naming Baglow in the Ms. Mew comment posted to Smith’s defamatory statement did more to firmly identify Baglow as Dr. Dawg than Baglow’s identification at Dr. Dawg in other venues and message boards at other times.  Without this comment (made by Baglow himself), one wonders if the result would have been the same.

————————————

[1]     The other two elements are that the words are defamatory (in that they would lower the reputation of the plaintiff in the minds of reasonable members of society), and that the words were communicated to at least one other person beside the plaintiff.

Court Curtails the Definition of Cyberbullying

The Nova Scotia Supreme Court has finally given some much-needed judicial interpretation to the broadly worded definition of cyberbullying contained in the Cyber-safety Act, SNS 2013, c.2.

The Cyber-safety Act came into force on August 6, 2013.  It created both a tort of cyberbullying and also provided a procedure through which a complainant can seek a protection order against an individual or individuals to stop existing cyberbullying and prohibit future cyberbullying.  Both the tort and the protection order are based on the following definition of cyberbullying, in s.2:

…any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

This definition of cyberbullying runs the gamut from the truly insidious statements calculated to cause fear and intimidation, to statements that are simply embarrassing or somehow harmful to the recipient’s self-esteem.  It contains no requirement to show motive or intent, nor does it require that the communication be false or misleading.  On a plain reading of it, true statements could be considered cyberbullying so long as they are repeated and are distressing or harmful to someone’s emotional well-being.  It is certainly broad enough to include defamation, which is publications that would lower the reputation of a person in the minds of reasonable members of society.  Moreover, as it includes those who “assist” in such communications, the definition is also arguably broad enough to include those who publish the electronic communication, such as web hosts or internet service providers (ISPs).

In Self v Baha’i, 2015 NSSC 94, the court considered the definition of cyberbullying in the context of whether it should vary, rescind or expand on a cyber protection order.  The court was clearly troubled by the expansive definition of cyberbullying in the Cyber-safety Act, stating that it went “far beyond the ordinary meaning of the term.”   In particular, it was concerned with the definition’s lack of requirement to show intent.

The following quote highlights the court’s concerns and provides a range of scenarios that, on a plain reading of the definition in the Cyber-safety Act, would be cyberbullying :

[25] The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might (“repeated or with continuing effect”) or might not (“typically”) matter. A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P. F. Sloan when he released “Positively 4th Street”, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper.

While the Bob Dylan reference may be lost on the under-40 crowd, the point is well made.  The definition, as it stands in the Cyber-safety Act, goes well beyond what is ordinarily understood as bullying.

To remedy this, the court determined the definition of cyberbullying in the Cyber-safety Act was intended to include malice.

This is a critical, and much-needed, interpretation.

Self v. Baha’i establishes that one must show evidence of the author or publisher’s malice in addition to the recipient’s harm in order to satisfy the definition of cyberbullying.  It imports the element of intent and ill will into the communication.  This will potentially have a profound impact on the future application of the Cyber-safety Act.

For plaintiffs or complainants, this may make it more difficult to meet the definition of cyberbullying, whether that be for the purpose of obtaining a protection order or for pursuing a tort action in cyberbullying.

For defendants, this should removing the innocuous or innocent communications from the definition of cyberbullying.   It should also protect the passive web host and ISP publishers of the electronic communication in question from being the target of a cyberbullying claim.

Importing the element of malice into the definition of cyberbullying also differentiates cyberbullying from defamation.   The cyberbully must be motivated by malice.  In other words, the complainant or plaintiff must establish malice before there can be a finding that cyberbullying has occurred.   Defamation has no such requirement.  The plaintiff in a defamation action need only establish that there was communication to another person that identified the plaintiff and that lowered the reputation of the plaintiff in the minds of reasonable members of society.   Malice is only considered in the context of defamation if the defendant raises a defence (such as fair comment, qualified privilege, or responsible communication) which can be defeated by a finding of malice.

Overall, importing the element of malice into the definition of cyberbullying should limit the claims of cyberbullying to those that were the intended target of this legislation.