Two sisters simply want to “move on with their lives” after winning $100,000 in a defamation suit against a woman who redistributed a screenshot of a Snapchat video on social media that she alleged showed them mocking the death of George Floyd five days after he was murdered by Minneapolis police.
Justine Lavallee and Shania Lavallee, from the Ottawa area, were each awarded $50,000 in damages last month by Superior Court Justice Marc Smith, who said in his ruling that defendant Solit Isak used “hurtful and inappropriate language” to describe the sisters and that she was “relentless in her campaign” to have them fired.
Smith ruled the screenshot “did not set out the factual foundation that was required” to prove Isak’s accusations that the Lavallees were “racists.”
Isak’s lawyer Cedric Nahum said in an email that he disagrees with the court’s decision, in part, because “whether or not something is racist is a question of fact as opposed to a question of opinion.”
“People’s interpretations of an act as racist or not is subject to their own personal beliefs and biases,” he said.
It’s a “cautionary tale” about the dangers of social media, said Howard Winkler, who has practiced in the area of media and defamation law for more than 35 years.
“What you do on the internet can cause quick and serious harm,” says Winkler. “And that if you abuse, in a sense, the privilege of social media, that there will be consequences.”
The Lavelle sisters, who have openly argued the video had no connection to the Floyd case and was taken out of context, lost their jobs, their mother’s house was vandalized and their friends and family received death threats after Isak shared the screenshot and urged her followers to identify the people in it, according to the court decision.
Once their identities were known, Isak and others pressured their employers to fire them.
“This case highlights the capacity of social media to be weaponized to destructive effect,” said their lawyer Charles Daoust, who said the judgment vindicated “their reputations before the court” after a particularly “traumatic” year.
“As members of the Indigenous community, they have always been sensitive to situations of racism in our society,” wrote Daoust in an email. “However, the events of May 2020 did not, in any way, relate to racism. Now that the Court has ruled in their favour, Shania and Justine want to move on with their lives and put this matter behind them.”
The screenshot, from May 30, 2020, showed Justine play fighting with Gilmour Driscoll-Maurice, her sister’s boyfriend. He was holding Justine’s hands behind her back and his knee was in the middle of her back. Shania shared the video with a group of friends on Snapchat.
One of Shania’s followers sent a screenshot of the video to Isak, who posted it on Instagram and Twitter, inviting her followers to help identify the people in the photo and “denouncing the actions of Justine, Shania, and Gilmour, who she did not know, as racist,” according to the suit.
Floyd was murdered five days earlier when Minneapolis police officers arrested the 46-year-old man and pinned him facedown on the ground after a convenience store operator called 911, alleging Floyd had purchased cigarettes with a counterfeit bill.
The suit against Isak proceeded after Smith ruled the plaintiffs had satisfied the basis of a defamation case, which includes proving the statements are about them and that the comments have been published to a third party. Isak’s posts were viewed between 15,000 to 40,000 times, according to the judgment.
Another element is that the comments must also “tend to lower the plaintiff’s reputation in the eyes of a reasonable person.”
Nahum, Isak’s lawyer, disagreed that this case met that standard, arguing that any damage to the sisters’ reputation was due to “nothing other than the Plaintiffs inappropriate and insensitive actions.”
The “plaintiffs have maintained that their actions were criticized out of context,” said Nahum in his email to the Star. “This is where I disagree with them. I believe that everyone should understand that ‘the context’ in which one’s activities will be viewed is greater than one’s own isolated personal world view,” he said of the screenshot.
The judge however, said that Isak’s “posts are serious accusations of improper conduct. One of her post’s associates Justine and Shania to the Ku Klux Klan. Solit’s statements have engendered feelings of hatred, contempt, dislike, and hostility towards Justine and Shania.”
“A reasonable person reading Solit’s social media posts will easily tend to lower Justine and Shania’s reputation,” wrote Smith in his judgment. “Each of Solit’s posts are brief, but taken as a whole, the reasonable person would think and conclude that Justine and Shania are racists.”
Defamation cases also have a number of defences, including fair comment and justification. They are different than criminal cases, however, in that the onus is on the defendant, and not the prosecution, to prove what they said is true.
And to do that, there has to be some evidence that the comments, whether they are stated as facts or couched as opinion, are grounded in fact, according to two lawyers interviewed by the Star.
Nahum argued that Isak’s posts were fair comment because “the factual basis is clearly stated by the Defendant that the actions of the Plaintiff’s clearly resembles the brutal killing of George Floyd,” an argument he said was backed up by a later apology from Shania for posting the video.
In it, Shania said that she understood “the video could be taken out of context given the current situation and I now see how insensitive it is.” But she went on to say that her sister and Driscoll-Maurice were “play fighting as they always do.”
Nahum argued that the apology, together with the subsequent firings, helped prove justification.
According to a letter from the Canadian Border Services Agency submitted as part of the case, the agency fired Justine, stating that “Regardless of Ms. Lavallee’s intentions, a reasonable individual would have recognized that posting such a video at this time would demonstrate a severe lack of judgment.”
“She also advertised on social media her employment with the CBSA,” according to the letter. “As such, the matter had harmed the CBSA’s reputation to the point where her casual employment with the CBSA was untenable.”
Shania’s employer, Boston Pizza, fired her stating in part that regardless of intent, “Ms. Lavallee’s social media activities caused harm to Boston Pizza’s brand and reputation.”
The Star wrote about the incident after confirming that Shania was fired from her job.
The Ottawa Catholic District School Board rescinded its letter of employment to Shania, stating that the video, “taken out of context may have racial connotations.”
The board went on to say that the “inappropriate social media posts attributed to you are not consistent with our values as a Catholic School Board.”
But the judge ruled that Isak didn’t have enough to prove her case.
Two people who watched the video said the words “police brutality” were never said in the video, as claimed by Isak. And two teachers provided Shania with “glowing letters of recommendation” in the defamation case.
“In this particular case, there were no underlying facts,” said Winkler, explaining the judge’s decision for the plaintiffs. “They were simply expressions or statements of fact without the underlying basis for the comment.
“In order to be entitled to express a comment, and the law provides … a broad range of comment that’s permitted, you have to, within the comment, provide the underlying facts which you can prove to be true upon which the comment is based,” said Winkler. “Or the facts have to be so notoriously known, that you don’t have to state them.”
According to the judgment, the facts have to be sufficient so that “readers can make up their own minds on the merits.”
If the defendant had been able to view the entire video, or had reached out to the Lavallee sisters for comment, Winkler says “either of these steps would have provided a proper context upon which the comment could then have been made (or perhaps would never have been made in the first place) and people could then make up their own minds about whether the comment had merit.”
Both sisters alleged in the suit that their “lives were ruined overnight because of Solit’s actions. Their reputations have been annihilated and they suffered deep humiliation and shame, as well as severe terror and anxiety.”
Winkler says that anecdotally these types of defamation suits are on the rise.
“Social media and the internet has opened up sort of mass and broad communication to everyone without the same checks and balances” as traditional media, said Winkler. “And great harm can be done because of it.”