The Web has become the most powerful and frequently used medium of communication on earth. It permits wars to be halted quickly, criminals to be quickly captured. Teaching has no limit. Communication can be personal as well as impersonal. The Web can make anyone a celebrity in a few minutes. It can tarnish or destroy a reputation with one click.
- Laforest c. Collins, 2012 QCCS 3078
This month, Reasonable Doubt is covering common legal myths. I’ve decided to write about the myth that we are free to criticize people on the Internet as we please, whether it is because of freedom of speech protections or anonymity. The truth of the matter is standard defamation laws also apply to the Internet.
Generally speaking, defamation is the communication of a false statement that tends to lower someone’s reputation in the minds of right-thinking members of society. The term “slander” is used to refer to spoken defamatory statements and the term “libel” is used to refer to written defamatory statements.
In Canada, the law tries to balance the values of freedom of expression and healthy political debate with the need for people and businesses to protect their reputations. The line between defaming someone and expressing an opinion can be difficult to discern and can depend on the context of the communication, but it still exists.
I spoke with Roger D. McConchie, a Vancouver lawyer who practises primarily in the area of defamation (and has represented the Georgia Straight). He explained that Internet libel is a growing area of concern for citizens and businesses alike.
The same laws that apply to traditional defamation also apply to Internet libel. There is little to no difference between publishing a defamatory statement in a newspaper or another traditional print media and tweeting it.
Before the Internet, mostly journalists or professional writers wrote for the public. The Internet has changed that in a big way. Now anyone can publish an article or post a comment and it is suddenly available worldwide.
More and more people are suing for compensation and to have defamatory content taken down from social media sites, blogs, or other websites. For example, in Davis v. Singerman, Melissa Singerman posted a status update on her Facebook account that was only viewable by her own friends (all 18 of them) about Julie Davis, insinuating in no uncertain terms that she was a bad mother. The comment read:
I am trying to understand how a mother with a full time job can live in a womans shelter with her children for six months, sleep with her 7 year old son with barely any clothes on, pawns her children off at her friends house every weekend, keeps no food in her home to feed her children. Was under investigation with HRS for child abuse. How is she able to get away with it ?????
The court awarded Davis $5,000 in damages. The award would have been greater if the court had found that Singerman had acted with malice or an intention to harm Davis.
The searchability or “Google factor” has made Internet libel particularly threatening in comparison to the old print environment, says McConchie:
With a defamatory statement in a newspaper, in two months the paper is ground up or recycled. With the Internet, the statement could be read by thousands of people instantly or over a period of years.
When defamatory comments are more widely read, lawsuits can attract awards in the hundreds of thousands of dollars.
One of the problems with Internet libel is the false belief that defamers can insulate themselves with pseudonyms. Consciously or not, it feels easier to get away with writing mean or untrue comments when you post them through a pseudonym on the Internet. Frankly, sometimes I briefly lose my faith in humanity after reading the comments section of online newspaper articles.
While anonymity makes Internet libel more complicated to resolve, McConchie says that the reality is that most users leave a trail of breadcrumbs that exposes their identity. In most cases there is a clearly drawn path straight back to the author. In more difficult cases, victims can hire specialists in computer forensics to track down the defamer.
The effects of Internet libel can be substantial, all but ruining someone’s life or business. Cyberbullying, which often involves defamation, can be obviously traumatic for young people and in some cases has been related to youth suicides.
Online libel can also have a large impact on someone’s professional life. McConchie says that some business owners do not know they’re being defamed on the Internet until they go searching for the reason that their business all of a sudden dried up. Many employers do Internet searches for applicants’ names before offering them an interview or a job. A completely untrue and malicious Internet comment or article can be enough for the employer to move on to the next candidate.
McConchie has a unique insight into the use of the Internet because of the sheer volume of calls he receives from potential clients. He thinks that one of the reasons that Internet libel is so prominent and damaging is our societal shift towards sensationalism and the need for a good storyline:
In a courtroom the hope is that through cross-examination lies are unmasked. But on the Internet, the more we get used to and accept untruths, the more divorced we get from placing value on truth and accuracy; I think that we are diminished because of it.
Unfortunately, in British Columbia we do not have laws that specifically address online libel, but McConchie hopes that as more people become affected and aware of the problem that there will be an impetuous to address it through legislation and make it easier to have defamatory content removed and uncover defamers hiding behind pseudonyms.