The Canadian Bar Insurance Association

Social media sites facilitating defamatory posts could be liable

Social media platforms face a “significant” risk of being sued for defamation and potential liability amid growing concerns about offensive material being posted online, Toronto commercial litigation and defamation lawyer Brian Radnoff tells

“The prevalence of this issue is exploding because people are frequently using social media to communicate and share views and opinions,” says Radnoff, a partner with Lerners LLP. “It allows for the very quick and wide dissemination of what people say to an extremely large audience.”

Liability is especially possible when the platform, such as Twitter or Facebook, has a terms-of-service policy designed to prevent the sharing of defamatory statements, he says.

“If they’re not following their own policies, that’s going to open up potential liability and could give a plaintiff several different arguments — particularly that the platform is acting maliciously in refusing to remove the defamatory publication,” he says. “Malice is important because it can defeat several defences that defendants can raise to address defamation claims — but it can also result in increased damages for a plaintiff.”

Regardless of terms of service, he says social media platforms “should not be publishing defamatory material — even if it’s someone else’s posting. If they’re facilitating that posting, that’s a basis in defamation law to make them liable.”

The Law Commission of Ontario has recognized the importance of the issue by launching the project Defamation Law in the Internet Age, Radnoff says. The commission released a consultation paper in November 2017 and is planning a conference in May.

“This is an area where there’s discussion about altering or adding more structure into how these issues are dealt with,” he says. “There is much talk about whether there should be specialized tribunals set up apart from the court system to deal with online defamation.”

A Toronto lawyer, author and commentator filed a statement of claim last fall against a Twitter subsidiary after a tweet about him — issued by a local publication that’s been called racist, homophobic and misogynistic — appeared on the social media platform, Canadian Lawyer reports. He sought $200,000 in damages and the removal of the tweet, and recently settled the claim.

For many people who have been targeted by a defamatory online post, getting the material removed is more important than suing for damages, Radnoff says, noting that making contact with the social media platform isn’t always easy.

A complainant can begin by pursuing the person who wrote the post, and “sometimes, if they’re sent a demand letter, they’ll take it down. But often that’s not the case and they refuse to do so,” he says.

“It can be very difficult just to find the right person to contact in the organization, let alone getting a response,” Radnoff says. “As a lawyer acting for someone, you can solve most of the problems by just getting the information removed, so it’s important that there be some effective manner of doing so. In my experience, with some of these platforms, it’s difficult to do that.”

If contact can’t be made with the platform or it refuses to remove the post, “really the only way you can get them to do anything” is to file a lawsuit, Radnoff says, adding that the person who posted the material in the first place would generally be included in the action.

Liability would then lead to damages, although “damages in Canada for defamation claims are relatively modest compared to some other jurisdictions. However, they depend on, among other things, how widely the material was disseminated and published, and the nature of the defamation,” he explains.

Radnoff says there’s a large divide between how defamation complaints are dealt with by social media compared to the mainstream media, such as newspapers and television networks, which have “an existing infrastructure” to handle these types of situations.

“There are many historical reasons, we have legislation and there’s a well-established process when something defamatory appears in traditional media,” he says. “A plaintiff is required to send a libel notice, and media organizations generally are very capable in terms of dealing with them.”

A defamation complaint relating to a traditional media organization “is dealt with generally by lawyers who are aware of what the law is, and it’s easier to deal with them as a lawyer if you’re able to communicate with another lawyer who understands the issues,” he adds.

“Conversely, if you’re dealing with someone who has no legal background whatsoever, it may be very difficult to explain to them what the problem is.”


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