Accounting for Law
Civil Litigation, Defamation

Online defamation can lead to loss of job, business

People who feel compelled to rant or make accusations online should be aware they could be sued for defamation, says Vaughan employment and civil litigation lawyer Arthur Zeilikman.

“Individuals get into heated arguments on social media sites and they start calling each other all kinds of things, and it could be defamatory,” says Zeilikman, principal of Zeilikman Law.

“Defamation tries to draw a line between free speech and reputational harm,” he tells AdvocateDaily.com. “You don’t want to have a chilling effect on the exchange of ideas but the problem is the Internet is such an unregulated place, and many people hide behind anonymity.”

Zeilikman, who has represented both plaintiffs and defendants in online defamation cases, says typically if there is a defamatory statement made online, the person who is targeted may sue for damages.

Some individuals may bring an injunction, which asks the judge to order the online poster to remove defamatory materials.

“Although considered an extraordinary remedy, you can get a permanent order after a trial if you’re successful on the full outcome of the evidence, if it is determined, for instance, that the defamatory conduct will continue, and there is a real possibility that the aggrieved party won’t be compensated with damages," he says.

But an extraordinary remedy usually wouldn't occur in an interlocutory stage, during pleadings, because of the courts’ strong emphasis on free speech, Zeilikman says. 

He says there are several defences in defamation cases. Most common is the defence of justification, or truth.

Alternatively, the defence may claim the statement was made under qualified privilege or absolute privilege depending on the occasion.

“For instance, qualified privilege would protect statements by the employer in certain circumstances when the former employer is called upon to discuss the quality of a dismissed employee,” he says. “Even if the statement is false, they may still not be liable because of their duty to do so. The only way to break it is by claiming they did it with malice.”

In most cases, the content and context of the statements, as well as the audience, are important considerations, he says.

“So if you’re constructively criticizing someone online, and the criticisms are balanced, that’s one thing, but if you’re making outright false, hyperbolic statements, that’s another,” Zeilikman says. The audience in each case is also important.

“Ultimately the law seeks to strike a balance between the fundamental right to free speech and the preservation of reputation”

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