When online reviews cross the line into defamation
By Rob Lamberti, AdvocateDaily.com Contributor
A recent Supreme Court of British Columbia ruling that dealt with a negative online review of a lawyer and a law firm shows that while it was defamatory, it wasn’t worth the court's time, says Fredericton defamation lawyer Matthew Pearn.
According to the decision, the plaintiffs represented the defendant on a legal matter. The client was unhappy with the outcome and requested a refund. When they refused, the defendant posted the following comment on the plaintiff’s Google Plus profile:
"I spent nearly $2000 for [the lawyer] to lose a case for me that they seemed they didnt (sic) put any effort into. Anywhere else would be moore (sic) helpful.worstest (sic) lawyer.would not recommend," quotes the decision.
Justice Catherine Murray noted that lawyers should generally exercise restraint in deciding whether to launch a lawsuit because of the imbalance between counsel's knowledge of the system and defendants who "are often not so fortunate."
Murray wrote, "in my view, this action should never have been brought" in part because the plaintiffs allowed for online comments through their profile.
"The review in question lacked any semblance of credibility or polish, and is unlikely to have impacted their reputation or business," she wrote.
"Accordingly, and to demonstrate the court’s disapproval of the plaintiffs’ actions in this proceeding, I award the plaintiffs $1 in damages," Murray ruled.
Pearn notes that the review was a one-time statement. Had it been part of an ongoing, harassing campaign, it might have resulted in "a very different award."
In another recent B.C. case, a wedding photographer was awarded $115,000 after she was subjected to an online "torrent of defamatory comments that destroyed her business," according to a Globe and Mail article.
In the case involving the lawyer, there was a single complaint issued on the internet and it wasn't considered as damaging as some other cases where people have gone on a campaign to attack someone's credibility, Pearn explains.
"A dollar is the kind of award that’s given if the court believes the claim is trivial," he tells AdvocateDaily.com. "I've seen an award of $100 at the end of a trial and it says the same thing, 'We think your reputation has been harmed so little that this is all it’s worth.'"
Pearn says he can understand why the court took the view it did because the lawyer and the firm were not subjected to a ruthless campaign by "someone using every avenue to damage their reputation in the public arena or by someone making a comment without having received a service."
"Here, someone received a service from a professional. They believe they didn’t receive what they paid for. As long as you make fair comment on what it was that you felt was lacking about the service — and not a broad vitriolic kind of comment — you're likely safe,” he says.
"That's because you’re making a comment on your opinion about what likely occurred," Pearn says. "However, if you're misrepresenting the facts, or you haven't had a relationship with that business and you're making comments about their services, you don't have a factual foundation to your opinion. And that puts you at risk.”
He says the same principles of defamation law are being applied to emerging technologies as with older forms of media. The rules of reasonable versus defamatory speech apply in all forms of communication.
"Whether or not there’s legislation in your jurisdiction, if you’re advancing a strategic lawsuit against public participation (SLAPP), the courts may take a dim view and may come at you for damages if they think it was inappropriate to bring a claim against someone for what may be a trivial comment," Pearn warns.
If the critic took a tone saying something akin to "this is the worst service provider ever" without a basis for the opinion, "they’re at risk for a more significant award than what was given here," he says.
Pearn says the court asked the lawyer and the firm to prove economic damage to their reputations. The only evidence presented was a statement purporting that the number of phones calls to the firm were down.
"In summary, there is no evidence before me upon which to quantify damages," Murray stated in her ruling. "Although generally defamation cases automatically attract a presumptive award of damages, the dearth of evidence of damage or injury, in this case, is significant, particularly as I have found the defendant’s post to be minimally defamatory, if at all."
Pearn says there is also a financial risk to those seeking damages for perceived defamation. He says the plaintiff could end up having to pay costs if they are not able to support the claim and if their motive is deemed to be an attempt to silence public discussion that is normally considered appropriate.