Defamation

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.”

Originally published by Toronto Star on  November 17, 2021

The reaction by Facebook to the consequences of a recent Australian court decision making social media platforms responsible for third-party comments shows how online defamatory content can be controlled. So why isn’t Canada doing the same thing?

Early in September, Australia’s high court ruled that online publishers such as Twitter, Google and Facebook were legally responsible for the comments added to their posts, even if the stories themselves were factual and accurate.

After that ruling, American-based CNN asked Facebook to craft a blanket disable feature so that the news organization could avoid any legal risk. Facebook refused, and offered to help CNN disable comments on posts one-by-one. Not satisfied, CNN responded by disabling its Facebook pages in Australia, forcing the social media giant to give in to CNN’s demands for a blanket disable feature in that country.

This is just the latest example of many where Google and Facebook have blinked in the face of external pressure. In February, Australia passed legislation that forced online platforms to pay for news content they use. Google threatened to leave Australia. When that failed to have any effect, they relented and entered into negotiations for the payment of royalties for their use of others’ content.

Also in Australia, Facebook, Google, and Twitter established a committee with independent oversight to combat online misinformation — but only after the government threatened legislation to achieve that goal.

These are all positive developments in the fight against misinformation and false and defamatory content. The pressure being applied to online platforms through court decisions and the threat of legislation forced social media platforms to self-regulate themselves in Australia, even though the outrageous nature of the comments leads to traffic and revenue.

Interestingly, a news story on the issue states a Facebook spokesperson has said the controversy shows “how Australian defamation laws needed to be reformed.”

I think they have it quite backwards. Instead, I think it is Facebook that needs to reform itself to prevent harm its platform is causing. The Australians are proving that such reform is possible.

An Australian court decision which recently ruled that online social media platforms are “publishers” of comments made by third parties — contained this insightful comment:

“The [media companies] chose to operate public Facebook pages in order to engage commercially with that significant segment of the population,” it reads. “[Their] attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”

This statement is absolutely correct.

Australia’s proactive efforts — by way of legislation or the threat of legislation — and the application of traditional common law principles by their courts, is forcing positive change among platforms such as Google and Facebook.

The real question is: Why is the rest of the world not following Australia’s lead?

There is a global acknowledgment of the problems caused by the current functionality of Facebook, Google, and Twitter, but only Australia seems to have addressed it.

I cannot understand why Canada is not following suit, though admittedly these issues have not yet come before our courts. Still, the Trudeau government has threatened to control social media platforms, but they’ve really done nothing of substance to deliver on that. Maybe there is a reluctance to take on these powerful platforms, which are richer than some of the countries in which they operate.

And to be clear, free speech is not the issue here.

Instead, what we’re dealing with in most of these cases is low-value speech. It is either misinformation or anonymous defamatory content, which is not nearly as important as the right to protect one’s reputation.

I hope Canada joins Australia in efforts to force online platforms to take responsibility for all the content on their sites. After all, much of the world relies on Facebook for the dissemination of information. Because of that, Mark Zuckerberg and others have to be held to account for the defamatory and harmful comments that their sites allow anonymous users to freely post.

Originally published by Toronto Star on  October 26, 2021

By Paul Russell, LegalMatters Staff • A recent Federal Court decision has brought Google one step closer to being held accountable for the defamatory material it links to on the internet, though there is a simpler way the same result could be achieved, says Toronto defamation lawyer Howard Winkler.

“I still don’t think we’re at a point where there is an efficient, effective remedy available to people who have been defamed through the services of Google, whether it be through search results, snippets or libellous content that it republishes,” says Winkler, principal and founder of Winkler Law.

“But we’re heading in the right direction, and the courts seem to be following a path which may eventually achieve that result,” he tells LegalMattersCanada.ca.

Winkler points to a July judgment of the Federal Court, which relates to a man’s claim that “news articles Google displays in its search results contain outdated and inaccurate information and they disclose sensitive information … [and] the fact that Google prominently links these articles to his name in search results has caused, and continues to cause him, direct harm, including physical assault, lost employment opportunities and severe social stigma.”

Defamatory links given when name searched

At the suggestion of Daniel Therrien, Canada’s Privacy Commissioner, the man requested that Google remove the defamatory links that are given when people search for his name “but Google declined to do so,” the judgment reads.

Court documents note that in “January 2018, the Commissioner published a Draft Position Paper on Online Reputation expressing the view that, in certain circumstances, PIPEDA [the Personal Information Protection and Electronic Documents Act] applies to search engines like Google. A consequence of PIPEDA’s application would be that Google might be required to remove links to content containing personal information.”

To aid in his investigation of the man’s complaint, the commissioner asked the Federal Court to rule on two key points:

• Does Google collect, use or disclose personal information in the course of commercial activities within the meaning of PIPEDA when it indexes web pages and presents search results in response to searches of an individual’s name?
• Is the operation of Google’s search engine service excluded from the application of PIPEDA because it involves the collection and use of personal information for “journalistic, artistic or literary purposes and for no other purpose?”

“Respectively, the court responded with a yes and no to those questions,” says Winkler. “This decision won’t solve the problem of online defamation by itself, but it’s one more piece of the puzzle.”

 Jurisdiction to consider the complaint

He explains the court’s decision simply gives the privacy commissioner jurisdiction to now consider the complaint against Google.

“We will have to wait for the investigation of the complaint and the ultimate decision to see what remedies Mr. Therrien thinks he has available to him and specifically whether he can make an order that Google delist certain search results which are found to be false and by extension, harmful and defamatory,” says Winkler.

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It’s also unclear whether Google will appeal this decision, he says, adding “it would be surprising if it doesn’t, but perhaps it is just intending to wait to defend the complaint and hope to succeed on the merits.”

Winkler says he hopes that as a result of this decision and other pressure Google will feel compelled to voluntarily alter its business model, to “better balance freedom of expression and the right of one to protect their reputation.”

Google is the ‘gateway to harm’’

“Right now, Google is at the far extreme of freedom of expression, without any respect or regard for the protection of reputation,” he says. “That is why I describe Google as being the gateway to harm.”

Winkler notes that both the courts and Canadian legislatures are trying to address online defamation, but reform has been slow.

“This is the first court case, from a privacy perspective, aimed at remedying the harm created by Google,” he says. “Its current policies allow for unfair harm to a person’s reputation, which can be immediate and devastating.”

Winkler points out the plaintiff started legal action in 2017 and is still waiting for some tangible results.

“With the current delays in the privacy commissioner’s investigations and its lack of remedial powers, the harm is done and likely permanent for the complainant,” he says.

‘Google can’t suck and blow’

Winkler says Google has taken contrary positions when it comes to defamation and privacy. He explains that when it comes to defamation, “Google argues that it is not a publisher and therefore not liable for the content its search engine promotes. However, in the privacy context, in order to be exempt from the provisions of the Privacy Act, it argues that it is involved in an act of journalism.

“Although the concepts of being a publisher and journalism might be different, they are close enough,” says Winkler. “Google can’t suck and blow. It can’t say for the law of defamation that it is not a publisher, and then say for the law of privacy that it is involved in a journalistic endeavour.”

In answering the second question posed by the privacy commissioner, the Federal Court judgment notes: “The primary purpose of Google’s search engine service is to index and present search results. This is not a primarily journalistic purpose because although it may facilitate access to information, it contains no other defining feature of journalism, such as content control or content creation. Even though Google returns some journalism in its search results, its search results clearly extend beyond journalism.

“In sum, Google’s search engine service does not operate for a journalistic purpose at all, or at least it does not operate for an exclusively journalistic purpose,” the ruling states.

Ruling has left the door open

“This ruling has left a door open,” says Winkler. “While Google was found not to operate for a journalistic purpose for the purposes of privacy legislation, it could be a publisher in other respects.

Instead of relying on the courts for a remedy to online defamation, he says the provincial government should, as a first and important step, simply adopt the takedown provisions recommended by the Law Commission of Ontario in its 2020 report, Defamation in the Internet Age.

Under this system, if an alleged fake or defamatory review of or post concerning a person or a firm is posted, the slighted party can electronically advise Google of their objection, he says. Google would then inform the original poster of the objection, and give them a set and short period of time to respond. If they fail to respond the post is taken down. This would quickly remove low value speech from the Internet.

Google conducts ‘70-75% of all internet searches’

Winkler says he is pleased that Google was specifically targeted in this case, considering its dominance among search engines. As noted by the judgment, some estimates suggest “it is used to conduct 70-75% of all internet searches globally. According to Google, its search engine is used to conduct millions of searches each day … Google’s parent company reported that it earned approximately $63.5 billion (USD) from Google in the first half of 2018 alone.”

“Any ruling against Google would apply equally to other search engines,” says Winkler. “Google obviously is the right precedent case. Its dominance in controlling access to content on the Internet is why I call Google a gateway to harm. What people are complaining about, in terms of false and defamatory material, is only happening because Google is making this false and defamatory information available and refusing to take it down when notified about it.

“What’s important about this case is that in the absence of legislation, which exists in the European Union, this is potentially the start of a Canadian right to be forgotten,” he adds. “And the real question is why do we need to wait for the slow process of a privacy commissioner’s investigation and decision when the government could simply enact legislation it deems is in the best interests of all?”

Originally published by LegalMatterscanada.ca on August 30, 2021

An Ontario Superior Court judge has concluded that a common law tort of Internet harassment should be recognized in the province as part of a decision which found a woman had engaged in “extraordinary campaigns of malicious harassment and defamation” online which was “carried out unchecked, for many years, as unlawful acts of reprisal.”

The decision in Caplan v. Atas 2021 ONSC 670 involves four separate cases brought by over 40 plaintiffs against Nadire Atas for the posts which she placed online on sites such as Reddit and Facebook, which for the most part do not monitor or control the content of postings. She largely posted anonymously or using pseudonyms, and Justice David Corbett wrote she “has carried on systematic campaigns of malicious falsehood to cause emotional and psychological harm to persons against whom she has grievances.”

“These include adverse parties in litigation, Atas’ own lawyers, and the lawyers and agents, relatives (including siblings, spouses and children) of these people, a former employer, its successor, owners, managers and employees of this former employer, and generally an ever-widening circle of victims, generally chosen to cause misery to Atas’ prime victims, those against whom she harbours festering grievances,” he wrote in his Jan. 28 decision. “As of the time that these motions were argued [in 2019], there have been as many as 150 victims of Atas’ attacks.”

The posts were traced to Atas after a long campaign by many of the plaintiffs. Atas, who was self-represented in the case, has been deemed a vexatious litigant and was cited for contempt of court as the case against her unfolded. According to court documents, she admitted to having authored some of the posts but denied she was responsible for the majority of them. She also argued the defamation claims were barred by the notice requirements under the provincial Libel and Slander Act and the court had shown bias against her, but these arguments were rejected.

Justice Corbett noted courts can order a defendant to remove offensive content on the Internet but such an order would not be effective in the case, as Atas has shown that she will not follow court orders, has posted on sites that have policies of not removing content on request and is destitute after filing for bankruptcy.

“[But] the court itself has an interest in seeing the overall conflict brought to an end,” he wrote. “The alternative order proposed by the plaintiffs … vesting title to the postings in them, with ancillary orders enabling them to take steps to have the content removed, will be more effective for them.”

And Justice Corbett concluded that a common law tort of Internet harassment should be recognized in Ontario “because Atas’ online conduct and publications seek not so much to defame the victims but to harass them.” He noted the Ontario Court of Appeal recently overturned a lower court ruling which recognized a common law tort of harassment (Merrifield v. Canada (Attorney General) 2019 ONCA 205), but “the facts of the case before me are very different.”

“The intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery,” he wrote. “The law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct.”

Plaintiff counsel Gary Caplan said he could not comment on the specifics of the case due to ongoing litigation against Atas, but said the decision’s importance was “timely in the sense there has been a lot of recent media attention brought to bear on the problems occasioned by either Internet harassment or Internet defamation.” Caplan’s brother and two sons-in-law were among the plaintiffs in the case after being targeted by Atas.

“How to deal with Internet harassment and defamation is a very big question and I am not sure there is a right answer,” he said. “One of the very obvious issues is what do you do with posters or people who access the Internet anonymously using aliases or fake names, and in terms of court process one of the challenges is trying to have the evidence necessary to show who is behind it.”

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, said it is an “extreme example of the kind of harm that can be done on the Internet by one person.”

“And as egregious as the facts are in this particular case, this kind of situation plays out every day on Facebook, Google, Twitter and other social media platforms where the lives and businesses of ordinary people are ruined by this kind of conduct,” he said.

Although the plaintiffs were able to achieve significant remedies against Atas, Winkler said the case doesn’t really deal with the central problem of online harassment and defamation — the fact that the social media platforms allow the material to be posted and largely refuse to do anything about it when complaints are raised. He said the Ontario government should adopt a recommendation made by the Law Commission of Ontario (LCO) in its 2020 report on defamation law in the Internet age to bring in legislation which allows for notice provisions of defamatory content to be passed on to social media platforms, and it imposes an obligation on them to take down the content if there is no response to the notice.

“If the province enacted that, and if they did it while recognizing this new tort of Internet harassment, then there would be a recourse available to ordinary people in situations like this,” he said. “Without that platform and that megaphone for speech, then the kind of conduct and behaviour that Ms. Atas engaged in would have been silenced. It was only when these social media platforms refuse to respond in a way that provides a proper remedy that the court has found it necessary to intervene.”

The Common law tort of Internet harassment should be recognized in Ontario: judge was published by The Lawyer’s Daily on February 8, 2021.

A B.C. court has given the green light to a defamation action against social media giant Twitter, with a legal expert saying the case has the potential to settle a major unresolved issue in Canada — what is the liability of social media companies for comments users post online.

Frank Giustra, the B.C.-based founder of entertainment company Lionsgate, brought a defamation action against Twitter for comments made about him online concerning his relationship with Bill Clinton and the Clinton Foundation, the former U.S. president’s charity. He was targeted by online trolls who connected him to the debunked “pizzagate” conspiracy theory concerning a supposed Satan-worshipping pedophile ring consisting of many high-profile individuals from around the world. Posters also made comments about his involvement with the Boys Club Network charity, of which he is a founding patron.

Twitter asked the action to be dismissed, arguing California was a more suitable venue for any complaint against the San Francisco-based company. But Twitter would have no liability in the United States due to the freedom of speech provisions in the First Amendment to the U.S. Constitution and s. 230 of the Communications Decency Act of 1996, which gives Internet platforms immunity for tort claims arising from the dissemination of content by third-party users.

But B.C. Supreme Court Justice Elliott Myers sided with Giustra, writing the court does have jurisdiction due to the billionaire’s close ties to the province and the fact that many tweets referred to B.C. and were published there (Giustra v. Twitter, Inc. 2021 BCSC 54).

“The presumption is that a defendant should be sued in only one jurisdiction for an alleged wrong, but that is not a simple goal to achieve fairly for Internet defamation,” he wrote in his Jan. 14 decision. “[Giustra] has gone far enough in demonstrating damage to his reputation here. I do not agree with Twitter, who argues that of all places in the world, the plaintiff’s reputation has not been harmed in B.C.”

In an online post, Giustra said that he believed “words do matter.”

“Recent events have demonstrated that hate speech can incite violence with deadly consequences,” he said on Twitter.

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, called the decision important because the issue of social media platforms’ liability for the content individuals post on their sites is undecided in Canada.

“I probably get on average two calls a week from people who are looking for some kind of advice about false or malicious postings about them or their businesses online,” he said. “And the reality is that for most people, until the issue of liability is resolved, they just don’t have the resources to take on these huge enterprises so they are really left without any remedy whatsoever.”

Winkler noted Giustra has the resources to overcome any obstacles that may be put in his path, and said if he is able to overcome those obstacles his action cou ultimately set the precedent in determining the social media giants’ liability in Canada.

“And if the courts find that there are circumstances under which the Facebooks and Twitters of the world are liable once they become aware of the defamatory nature of any content, then what is going to happen is one of two things — they will change their model and exercise some degree of control over the content once they receive complaints, or if they refuse to do that we will know that there is a remedy available,” he said.

Counsel for Twitter declined to speak on the case, and the company’s representatives did not respond to a request for comment. The Lawyer’s Daily also reached out to Giustra for comment but also received no response.

The Case could set precedent in determining social media giants’ liability for defamation: legal expert was published by The Lawyer’s Daily on January 26, 2021.

By Paul Russell, LegalMatters Staff • Proposals to update Ontario’s defamation laws to reflect social and technological changes in communications brought about by the internet are mostly sound, says Toronto lawyer Howard Winkler.

In March, the Law Commission of Ontario (LCO) released its final report titled Defamation Law in the Internet Age, with its terms of reference noting, “Ontario courts and, indeed, courts throughout the world, have been gradually adapting defamation law principles to contemporary circumstances. However, legislative reform in Ontario has been limited and Ontario’s Libel and Slander Act is now significantly outdated.”