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Cyber Liability - Defamation
PRESENTS
NORTHERN ALBERTA RISK & INSURANCE MANAGEMENT SOCIETY
The Internet & ReputationThe New Frontier,or
The Wild West?
Dan Carroll, Q.C.Field LLP
MARIMS
March 9, 2011
DisclaimerThis 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
• Variety of media: text, pix, video, audio
• Not trustworthy
• Indeterminate mass audience
• Anonymous
The Star Wars Kid
• 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/technology/parents-file-lawsuit-over-star-wars-kid-video/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.com/news/canada/Impact+media+troubling+lawyers/4153725/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-live-tweets-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/2010/2010onsc6568/2010onsc6568.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 DefamationTruth/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 DefamationFair 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 DefamationResponsible 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.
• Golden Rule: If you wouldn’t like that said about you, should it be said at all?
• If an opinion, is it honestly held?
Supervisor• Check facts.
• Does the statement serve a journalistic purpose or the public interest?
• 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 PolicyPolicy 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 PolicyPolicy 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 & ReputationThe Internet - New Frontier, or
The Wild West?
Both.
So be careful out there.
Dan Carroll, Q.C.Field LLP
Resource links
A. Star Wars Kida) Globe and Mail article b) The Offensive Internet
B. Tweets in the Courtrooma) National Post article re Russell Wililamsb) Slaw.ca re Crookes v. Newton
C. Courtney Love defamation suita) NY Times articleb) History and pleadings documents
D. Horizon Group Management v. Amanda Bonnena) History, pleadings and dismissal documents
E. Finkle v. Facebook (defamation vs cyberbullying)a) History, pleadings and dismissal documents
F. Liskula Cohena) History, pleadings and order
G. WIC Radio Ltd. v. Simpson, 2008 SCC 40H. Grant v. Torstar Corp, 2009 SCC 61I. Journalists Legal Guide, 5th edition
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