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Appellate Litigation

Earlier this year, we wrote about a pending case in Guelph, Ontario, in which a medical imaging clinic brought a $6 million claim for defamation against a couple stemming from negative social media posts. In that case, which has yet to be heard, one-half of the defendant couple had posted online about allegedly homophobic comments made by the clinic’s president, via the clinic’s official Twitter account. Essentially, the defendant retweeted posts shared by the clinic president, along with her own commentary indicating that she and her spouse would not be patronizing that particular clinic due to the owner’s posts. While only one-half of the couple posted about the clinic, the plaintiff brought a claim against both spouses, saying the other was vicariously liable. The defendants have since filed an anti-SLAPP motion, saying that the clinic’s suit is an attempt to silence discourse on a matter relevant to the public interest.

Cancel Culture and Social Media

The case discussed above could be said to fall within the heading of ‘cancel culture’, a term adopted on a widespread basis in the relatively recent past to refer to the practice of blacklisting individuals or organizations.

Merriam Webster dictionary defines ‘cancel culture’ as “the practice or tendency of engaging in mass cancelling as a way of expressing disapproval and exerting social pressure”. The dictionary further defines ‘cancel’ in this context as “to withdraw one’s support for (someone, such as a celebrity, or something, such as a company) publicly, and especially on social media”. The term has grown in popularity considerably over the past few years, especially as people are targeted on social media for views they’ve expressed or actions they’ve engaged in, particularly in regards to ‘hot button’ issues such as race relations and sexual harassment. The culture of cancelling may have grown most as a result of the “Me Too” movement, which served as a support system for people affected through a “strength in numbers” approach.

Legal Liability for Defamatory Social Media Posts

While it has become a common occurrence to see social media posts highlighting comments or actions the poster perceives as being problematic, courts are only just starting to weigh in on the potential damage such posts can cause. In one recent case, an Ontario court found a defendant liable for significant damages after her defamatory posts went viral, creating a number of real-life consequences for the subjects.

Defendant’s Social Media Posts Result in Plaintiff’s Job Loss, Harassment

In May of 2020, the Plaintiffs, JL and SL, were playfighting along with one of the sister’s boyfriends, GDM. SL took a short video of JL and GDM play-wrestling and posted it to her personal Snapchat account. After viewing the video, one of SL’s followers on Snapchat created a screenshot of a moment in the video, in which JL was face down on the ground, and GDM was leaning over her and holding her hands behind her back, and with one of his knees placed in the middle of her back. The follower then shared the screenshot on their own social media, where it was seen by the defendant, SI.

When SI saw the screenshot, she made an assumption that JL and GDM were mocking the recent death of George Floyd, who had been killed while in police custody just five days earlier, after a police officer had kneeled on Floyd’s neck for an extended period of time. The death sparked protests across the United States and beyond. SI, who did not know the plaintiffs, shared the screenshot along with her interpretation of what it depicted and called for her followers to help identify and denounce the actions of JL and GDM. She then engaged in an ongoing campaign to encourage her followers to message the plaintiffs’ employers until they were terminated.

Plaintiffs Sue Defendant for Defamation

Soon after SI posted the screenshot, JL was fired from her job at Canada Border Services Agency. In addition, she was rejected for roles with the government and the Royal Canadian Mounted Police. SL, who shot and posted the video where the screenshot originated, was terminated from her role as a waitress. She also had an offer to start a teaching position with the Ottawa Catholic School Board, however, after an investigation by the Ontario College of Teachers, the offer was rescinded. Further, their home and neighbours’ property were vandalized, and they and other members of their family were subjected to death threats and harassment over the phone and on social media.

The plaintiffs brought a claim for defamation against SI, who defended her actions by citing justification and fair comment.

Did the Social Media Posts Meet the Test for Defamation?

The Court considered SI’s posts to both Instagram and Twitter in light of the three-part test for defamation:

  1. The words in question relate to the plaintiffs;
  2. The words were published to a third party; and
  3. The words in question are defamatory to the plaintiffs in that they lower the reputation of the plaintiffs in the eyes of a reasonable person.

There was no question that SI had written and published the posts in question and that they related to the plaintiffs. After reading through SI’s long list of posts relating to the plaintiffs, the Court concluded that:

[SI] accuses [JL] and [SL] of being racists and mocking the tragic death of George Floyd.  [SI]’s posts are serious accusations of improper conduct.  One of her post’s associates [JL] and [SL] to the Klu Klux Klan.  [SI]’s statements have engendered feelings of hatred, contempt, dislike, and hostility towards [JL] and [SL]…A reasonable person reading [SI]’s social media posts will easily tend to lower [JL] and [SL]’s reputation.  Each of [SI]’s posts are brief, but taken as a whole, the reasonable person would think and conclude that [JL] and [SL] are racists. 

Defendant’s Social Media Posts Tarnished the Plaintiffs’ Reputation

As a result of the finding that SI’s posts constituted defamation against JL and SL, the Court found that the plaintiffs were entitled to general damages. Prior to SI’s social media campaign against them, in which she relentlessly sought to have them fired, and also published personal information such as their phone numbers and email addresses, both plaintiffs had good reputations in their community. After the ordeal, both had suffered public humiliation, anxiety, and distress.

The Court awarded each damages in the amount of $50,000. The judge indicated that they were tempted to add punitive and aggravated damages, but declined to do so, finding that SI had been ‘misguided’ and acted impulsively with the intention of raising awareness of a deserving issue. However, she failed to take the time to verify her assumptions about the image she saw and engaged in a campaign that had serious impacts on those she targeted.

For Exceptional Legal Representation in Libel and Defamation Matters Contact Milosevic & Associates in Toronto 

If you are an individual or organization and believe that defamatory comments have been made about you in the media or online, or if you have been accused of making defamatory statements, contact the highly knowledgeable defamation, libel and slander lawyers at Milosevic & Associates as soon as possible. Our goal is to immediately protect you, your reputation, and your livelihood. Call us at 416-916-1387 or contact us online.