Canadian COMPETITION LAW

November 8, 2012

Guest post by Christine Duhaime (Duhaime Law)

Defamation by Tweet?

In one of BC’s first ever Twitter defamation actions, RCMP officer James Brown, has filed a civil claim against a Vancouver lawyer and three other defendants over, among other things, sexual, or sexually-related content disseminated over the Internet, including on Twitter.

And I think he’s likely to win his case if he can prove that the statements were published and the defendants were the authors of those statements.

Alleged Defamatory Statements

Brown filed a Notice of Civil Claim in the Supreme Court of British Columbia is which he alleges that (note that these are just allegations as against the defendants and also that the statements allegedly published by the defendants are also just allegations as against Brown):

A defendant named Grant Wakefield created false profiles on a website called Fetlife (as in fetish life) to obtain sexual photographs and postings uploaded by Brown on Fetlife;

Wakefield and two other John Doe defendants (the “John Does”) provided Brown’s Fetlife material to the media;

Wakefield and the John Does provided other images to the media depicting sexual attacks on women that they alleged were images of Brown;

The Vancouver Sun and other media outlets published the Fetlife and the other material that was allegedly provided by Wakefield and the John Does, although many later issued retractions in respect thereof;

During a period of three days, Wakefield and the John Does wrote several Tweets using pseudonyms to the effect, inter alia, that Brown: (a) was silencing victims; (b) attended the illegal bar operated by convicted killer Robert Pickton; (c) was connected to convicted killer Robert Pickton; (d) was corrupt; (e) was charged with three cases of sexual assault; and (f) received tax funding to silence witnesses and victims;

In an email to a magazine, Wakefield and the John Does stated that Brown had sexually assaulted young women and was friends with convicted killer Robert Pickton;

In the month of August 2012, Wakefield and the John Does posted allegations similar to those above on several blogs;

In July 2012, another defendant, a Vancouver lawyer named Cameron Ward posted comments on his law firm website in which he stated that in its header that Brown: (a) is a sexual sadist;  and in the content of the post, that Brown: (b) is a sexual deviant; and (c) was connected to Pickton; and

In August and October 2012, Ward posted additional comments on his law firm website about Brown which were defamatory, including copies of emails sent to counsel for the Missing Women Commission of Inquiry regarding Brown.

Brown is seeking an injunction to stop the defendants and everyone else from continuing to write, print or publish any libelous material concerning him and he is seeking general, special, aggravated and punitive damages against the defendants.

Defamation in Canada

Why might Brown win his defamation claim? If he can tie the statements to one or more of the defendants, he may succeed in his claim because in Canada, in order to establish a claim in defamation, Brown only has to prove three things, namely that the words: (i) were defamatory (they would tend to lower Brown’s reputation in the eyes of a reasonable person – this means the judge who assumes he/she is reasonable); (ii) referred to Brown; and (iii) were published or communicated to at least one person other than Brown.

According to the Notice of Civil Claim, the offending content about Brown is still available on the Internet and some refer specifically to him.  If that is true, he has already established two of the elements of the tort.  His lawyers just need to prove that the words would lower Brown’s reputation in the eyes of a reasonable person. If the allegations in the Notice of Civil Claim are accurate, that would seem easy enough.  Some of the statements are clearly repugnant, including allegations that Brown sexually assaulted a young woman (e.g., is a criminal), and was connected to and friends with convicted serial killer Robert Pickton.

Defamation is a strict liability tort, meaning that once Brown establishes that the defamatory words were published, the onus shifts to the defendants to prove that the words were defensible on the basis of:

1. Truth (e.g., the statements made against Brown are true and in this case, the defendants would have to prove, inter alia, that Brown was connected to, and friends with Robert Pickton and that he sexually assaulted a young woman);

2.  Fair comment (e.g., generally available to members of the media, although it is not necessarily limited strictly to them. Fair comment protects opinions that are honestly held on matters of public interest – this is not the same as the U.S. fair comment defence and in Canada is difficult to establish); or

3. Published under privilege (e.g., applies if the person who made the statements had a legal, moral or social duty to make the statements and the recipients had a corresponding interest in receiving the statements. It tends to apply in employment relationships, business communications, family communications and sometimes in the medical context. In this case, the recipients arguably may have had an interest in receiving the statements but the publishers of the statements arguably had no corresponding legal, moral or social duty to make the communications).

In my view, the defendants will have an insurmountable task in defending the defamation action on any of the three grounds.

It’ll get Really Ugly, Folks

It is doubtful that this case will settle and it will likely proceed to trial in 2014 or 2015. In the meantime, however, I suspect it will blow up into one of the messiest litigations in the history of British Columbia because the dispute involves the reputation and integrity of the RCMP and a member of the legal profession.  Parties will get entrenched in their positions and as they say colloquially: “It’ll get really ugly fast, folks.”

Christine’s 10 Tips to Avoiding Defaming Someone

If you want to avoid defaming someone, here are 10 simple things to keep in mind:

1. Tweets are a form of communication – whatever you Tweet is published immediately;

2. Be careful about Re-Tweets because you may be unwittingly disseminating defamatory material written by others;

3. Be just as careful on Facebook as you would on Twitter – your posts, pictures and messages on Facebook are not private per se. Once you publish something on Facebook, you have immediately disseminated it;

4. You can defame a person verbally or in writing – a false statement made verbally is slander whereas if it is made in writing, it’s libel;

5. You can defame a natural person as well as a legal person – what this means is that it is just as actionable to bad mouth a business or a corporation or its goods or services, as it is a human person;

6. You can defame a person’s trade, profession or office, and not just the person by disparaging their position. For example, a defamatory statement disseminated about a restaurateur is actionable;

7. The defamation arises when the defamatory statement is communicated to a third person – you can privately tell a person what you think of them or their business and it is not actionable (provided no one is within earshot and in the case of written communications, you do not subsequently disseminate that communication to a third party);

8. If a statement is true, it is not defamatory but you better have the evidence ready to prove the truth of the statement if sued;

9. A court will look at what you said or wrote as a whole in deciding if the words are defamatory and not just the literal meaning and it will also consider the words in the context of the targeted person – this means that a lot more of what a person publishes will be scrutinized in an assessment as to whether the statements are defamatory; and

10. Don’t quote negative comments from other people, repeat rumors, or draw conclusions that you cannot substantiate.

It’s acceptable to have an opinion and to vocalize it on any issue but don’t cross the line and disseminate or communicate statements that are not true and risk injuring the reputation of the person you are targeting.

Christine’s Tips to Mitigate Employee
Defamation to Business Owners

Unfortunately, few employers give much thought to the legal risks they face by their employees engaging in social media, particularly in the context of defamation until it’s too late.

If you are an employer, you should have a written policy on what social media platforms your employees are permitted to use in relation to your business to minimize your exposure to an action for defamation as a result of something one of your employees communicated. Remember that when your employee Instagrams or Tweets, the communication is immediately conveyed to millions of third parties and the damage is done.

Your policy should stipulate, among other things, whether or not your employees can:

1. Take Instragrams of your premises or your products / services and post them;

2. Tag or otherwise identify your business in Instragram, SnapChat, Twitter, Facebook and other social media platforms;

3. Tweet about you, your policies, your business or other work-related matters on social media platforms;

4. Tweet about other employees; and

5. Tweet or take Intragrams of your customers – this is particularly important for businesses with prominent clients.

Your policy should also set out the employment repercussions for improper Tweeting, Intragramming or other engagement in social media platforms that violates the business’ policy.

And finally, make sure your lawyer drafts or at least reviews your written policy for enforceability. Trust me, it will cost you less than defending a defamation lawsuit.

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