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Watch That Post!


Social Media has become an integral part of our daily lives. Everyone, well almost, is on social networking sites, browsing relentlessly through numerous posts that they come across in their daily feed. Most companies also have their Facebook and/or LinkedIn pages to promote the product and/or services that they provide. Its not uncommon for people to post comments upon the products/services offered by these companies, affecting their brand value and market reputation. But can a comment made against a product and/or service could qualify as a “defamatory and slanderous statement”, thereby leading to a potential defamation/libel lawsuit?


The Dial-A-Law Library associated with the Canadian Bar Association defines Defamation, Libel and Slander as:


Defamation is communication about a person that tends to hurt their reputation. It causes people who read or hear the communication to think less of the person. The communication must be made to other people, not just to the person it's about.


Libel is the type of defamation with a permanent record, like social media and other online posts, newspapers, letters, emails, pictures, and radio and TV broadcasts.


Slander is the type of defamation with no permanent record. Normally it's a spoken statement. It can also be a hand gesture or something similar. 


So, what if someone retracts the statement with an apology? It might limit the damages but does not prevent the libeled party from filing a lawsuit.


In an interesting decision recently released by the Court of Appeal for Ontario, the tables turned and the Plaintiff pursuing the matter ended up paying costs to the defendants that posted some comments on Facebook.


In United Soils Management Ltd. v. Mohammed, 2019, the two defendants under two separate cases got their respective actions dismissed and got awarded with damages, along with costs on full indemnity basis.


The Plaintiff [Appellant], a site remediation, excavation and special materials disposal contractor, has operated a gravel pit near Stouffville since 2007 and got an amendment approved from the town council to its license that amended its dumping rights at the gravel pit site, allowing it to dump material collected from small quantity sites and from hydro-vac trucks. Some people, including the defendants [Respondents] had concerns that this could affect and compromise the long-term integrity of the local water supply. They took their concerns to Facebook, posting comments on the Plaintiff’s Facebook page. One of the defendants mentioned that such dumping is potentially “poisoning our children” while the other mentioned in her post that the Councillor who voted in favor of the amendment was “in the pocket of United Soils”.


A few days after the respective postings, each defendant received letters from the plaintiff’s lawyer demanding, in essence, an immediate retraction and apology. The letters also contained a libel notice. Both the defendants immediately acted, deleting the respective posts. While one of the defendants was able to apologize and retract the statements, the other was not able to do so as the relevant Facebook page no longer existed.


Days later, both were served with lawsuits alleging libel. Both the defendants brought in a motion to dismiss the respective actions against them. The respective motion judges allowed both the motions dismissing the plaintiff’s action and awarding costs to the defendants. The motion judge also pointed out that the appellant instituted the proceeding notwithstanding that Ms. Mohammed [One of the Defendants] had apologized, as demanded by the appellant. The judge found that this was “a continuation of its desire to intimidate”. The Plaintiff appealed.


The Court of Appeal for Ontario dismissed the appeals. The court stated:


The appellant offered no evidence of any monetary damage suffered by it. While damages are presumed if defamation is established, there is no presumption about the nature or quantum of that damage.


Nor is there any evidence of any reputational harm done to the appellant’s business. There is no suggestion that the appellant, a corporation, suffered any damage to, or was likely to suffer any damage to, its business reputation as a result of the respondents’ Facebook posts.

The extent of any harm suffered or likely to be suffered by the appellant is also significantly diminished by the very limited circulation of the alleged defamatory comments. In both instances, they were posted only for a few days and to a limited audience of likeminded individuals also concerned about potential damage to the environment.


The apology goes a long way to eliminating any possible future harm to the appellant’s reputation from the posts.


While the appellant can point to little, if any, harm or potential harm, both respondents make a strong case for protecting their freedom of expression. The statements related to a matter of significant public importance. They were also part of an ongoing political dialogue in the local community.


Thus, an immediate deletion of the posts, retraction and apology went a long way in favor of the defendants. It limited the reach of the posts to its potential readers and thus the plaintiff was unable to prove any damages. Also, the intent of the posts was not to defame the company as such but was a genuine concern that was shared by a few community individuals.


One always has that freedom of speech in Canada, be it written or spoken. However, one should be wary enough to know what to post on social media. Apparently, the intent of the post matters.


Get your message out there, but beware, and don’t forget to word it properly. 


Disclaimer

The content of this article is intended to provide general guidance only. A specialist must be consulted for specific circumstances.  

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