19/01/2022 by Lauren McDiarmid and Michael Scherr 0 Comments
Defamation in the Era of Social Media
Defamation has become increasingly common in the era of social media. In Brian Vickers’ CBABC article, “While one may perceive social media sites as a safe forum to discuss pressing concerns with friends, most people are blissfully unaware that an errant or offhanded post may have devastating ramifications on an innocent third party”.
An increasing amount of modern-day defamation cases stem from casual and offhand comments people publish online thinking that they may say whatever they so please; however, this is certainly not the case. Many people feel as though they can publish content online out of anger, spite, and frustration, but it is important to know that what you say online can have serious legal consequences. The Canadian Charter of Rights and Freedoms does not grant you a licence to say or publish anything you please. As stated by the Supreme Court of Canada, “an individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy …"
This article focuses on defamation law within British Columbia, Canada
Often, people say that a statement is only defamation if it is false. While this is technically true, a more accurate statement would be that a statement is not defamatory if you can prove it is true.
A person who feels their reputation has been damaged unfairly by another is required to prove three things to obtain judgment and an award of damages for defamation: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words referred to them; and (3) that the words were published, meaning that they were communicated to at least one other person. If these elements are established, falsity and damage are presumed. The defamed person is not required to show that the defendant intended to do harm. It is then up to the person who published the impugned words to establish a defence (one of which is that the words were true).
This shifts the onus on the publisher to prove the truth of their words or the elements of another defamation defence (for example, that the words were published on an occasion of qualified privilege).
Defamation is broken down into slander or libel.
Libel v. Slander
- Libel – a published false statement that is damaging to a person's reputation; a written defamation (i.e., a social media post). It includes a broadcast statement over radio or television.
- Slander – the action of making a false spoken statement damaging to a person's reputation (verbally – i.e., making comments to a group of friends, neighbours, coworkers, etc.).
I think I’m a victim of defamation – What Should I Do?
1. Save and preserve the defaming content.
Take screenshots or download the post. Online content can disappear quickly, so act fast and save your evidence. In defamation law, the plaintiff needs to prove ‘who said what about whom’, so obtaining a copy of the offending publication is crucial.
2. Get legal advice.
Contact a defamation lawyer in your jurisdiction to discuss what remedies may be available to you.
How Do I Remove Defamatory Content?
If your legal counsel determines there is a legal basis for your case, the following options may be available to you:
1. Demand a retraction and apology.
The Legal Help BC website provides a helpful summary of the purpose of demand letters in BC. Essentially, a demand letter is a formal letter that demands the other person (or corporation) performs a legal obligation, such as fixing a problem, paying a sum of money, or honoring a contract. The letter gives the recipient a chance to fix the issue without being taken to court. Demand letters are a beneficial first step as it is less costly as opposed to commencing litigation.
2. Follow the social media sites take down process.
Many sites have a process to request removal of defamatory content. For example Facebook’s Defamation Reporting Form can be found here: Defamation Reporting Form (facebook.com).
3. Take legal action.
Initiating an action for damages against the offending party (or parties).
Should I be Responding to the Defamer?
No! Don’t engage in the online banter. Everything said and done by you may be evidence in court. It may impact your claim. It is highly recommended that you obtain legal advice before posting any rash response.
Defamation is a growing problem for both businesses and individuals. If you have any questions or wish to seek more information about defamation, please contact our office to schedule a FREE HALF HOUR CONSULTATION with one of our lawyers.
This article does not constitute legal advice