Posting Perils: Defamation in the social media era.

• Author: Oikawa, Evan

MARCH 2, 2021 BY EVAN OIKAWA

Reading Time: 5 minutes

Social media and the Internet have raised new issues in defamation law and challenged Canadian courts.

U.S. Congresswoman Taylor Greene was in the news recently for posting controversial comments on Facebook about Democrats and the FBI. In response to a CNN article about these comments, Greene tweeted: "Many posts have been liked. Many posts have been shared. Some did not represent my views."

Greene's tweet shows the nature of information communicated through social media. It is interactive and easily accessible, and can be shared broadly. Perhaps most importantly, it has the potential to be accepted at face value, as recent events in the U.S. suggest.

The nature of social media and the Internet has raised new issues in defamation law, which Canadian courts have grappled with in recent years. In this post, I will comment on a couple notable cases addressing some of these issues. But first, I will provide a brief description of defamation law principles.

What is Defamation?

Defamation occurs when an individual publishes false and harmful statements about another person that would tend to lower that person's reputation in the eyes of society. Spoken defamation is called slander, whereas written defamation is referred to as libel. Defamation on the Internet is sometimes called cyber libel.

To succeed in a civil claim for defamation, a plaintiff must show that the defendant's statements:

1. referred to the plaintiff,

2. were defamatory, and

3. were published to a third party.

A court will assess the nature of the statements through the eyes of a "reasonable person"--a person who is reasonably thoughtful and informed, and not overly fragile. It is the overall effect of the words that matter, not the defendant's intention. (Although, intention or motivation is relevant to a finding of malice, a concept discussed below.)

Defences to a Defamation Claim

If the plaintiff successfully proves the legal elements outlined above, the onus shifts to the defendant to defend themself. A defendant can raise several defences to avoid liability. These include justification and fair comment.

Justification applies when the defendant proves the statements in question are substantially true. But defendants should be cautious. Relying on this defence and failing to prove it may result in a finding of malice and increased damages.

Another possible defence is fair comment. This defence protects statements of opinion...