Liable for Libel on the Internet? You bet!

Guest Post by Dan Carroll, Partner, Field Law.

In 2009, according to an Angus Reid survey, fully one in four Canadians believed they could not be held legally accountable for what they post online.

They were – and still are – wrong.

Newspaper or blog, TV or Twitter, book or Facebook – it matters not. Posting is publishing and publishing is one of the elements of libel, also called defamation.

What even fewer people know is that they can be held accountable for online postings in a criminal prosecution as well as in a civil action.

Civil Action

Defamation is the remedy for damages that is available to a plaintiff who brings a civil lawsuit for damages. Like many other freedoms, freedom of speech stops prima facie when it causes injury to others.

To establish liability, the plaintiff need merely show the court that the defendant published words referring to him and that those words would tend to lower him in the minds of right-thinking persons, i.e. that the words would injure his reputation.

The onus then shifts to the defendant to establish a defence to the claim. Some of the defenses include: the words were true in substance and in fact ("justification"), the publication was on an occasion protected by law ("privilege"), the words were fair comment on a matter of public interest ("fair comment") or the publication was a "responsible communication" on a matter of public interest.

These defenses are highly technical in nature. Complex issues of malice at law or in fact can defeat some of the defenses. If you are at the point where you are considering your defenses, you should also be at the point where you are retaining counsel.

The damages awarded to a successful plaintiff, to be paid by the unsuccessful defendant, can range from tens of thousands of dollars to more than a million, depending on the circumstances of the case.

Courtney Love recently settled a defamation case against her arising from her Twitter postings about a dress designer. The settlement: $450,000 – a high price to pay for not respecting the limits to freedom of speech.

Criminal Action

An even higher price can be paid if convicted of the offence of defamatory libel. This offence may be punished by imprisonment for a term of up to two years. If one publishes a defamatory libel that he or she knows to be false, the maximum penalty rises to five years imprisonment.

Defamatory libel is defined in the Criminal Code of Canada as "matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published."

Not only is defamatory libel a criminal offence, but so too are blasphemous libel, seditious libel and hate propaganda.

Are these archaic holdovers: dusty, little used and long forgotten?

No.

In April of 2011 charges of defamatory libel were brought against Karen McKinnon, a former councilor of the town of Drumheller, Alberta. In August 2011, McKinnon elected to have her case tried at Queen's Bench with a judge and jury. The court scheduled a two-day preliminary hearing date for October 29-30, 2012.

The Drumheller Mail cites police as saying that the charges arise after an investigation taking more than two months and include writings that appeared on Facebook. For obvious reasons what she wrote has not been republished,

Recommendations

RCMP Corporal Mike Black is quoted in The Drumheller Mail as saying,

"People need to realize they can be held criminally responsible for comments they post. Once it's out there, it’s out there forever and for basically anyone to see."

The Drumheller Mail also cites Staff Sergeant Arthur Hopkins:

"With the advent of social websites like Facebook, there are people who are writing things that are derogatory or defamatory against other people. A person is responsible for what they write on there."

So be careful.

Attack the issue, not the person. Ad hominen argument is fallacious, so avoid it. Seek not to denigrate the individual but to elevate the level of discourse.

How do we do that? I recommend the writer's variant of the Golden Rule:

If you wouldn't like to see that said of you on the front page of one of Canada's national newspapers, perhaps you shouldn't say it of someone else.

By Dan Carroll