In 2009, according to an Angus Reid survey, fully one in four
Canadians believed they could not be held legally accountable for
what they post online.
They were – and still are – wrong.
Newspaper or blog, TV or Twitter, book or Facebook – it
matters not. Posting is publishing and publishing is one of the
elements of libel, also called defamation.
What even fewer people know is that they can be held accountable
for online postings in a criminal prosecution as well as in a civil
action.
Civil Action
Defamation is the remedy for damages that is available to a
plaintiff who brings a civil lawsuit for damages. Like many other
freedoms, freedom of speech stops prima facie when it causes injury
to others.
To establish liability, the plaintiff need merely show the court
that the defendant published words referring to him and that those
words would tend to lower him in the minds of right-thinking
persons, i.e. that the words would injure his reputation.
The onus then shifts to the defendant to establish a defence to the
claim. Some of the defenses include: the words were true in
substance and in fact ("justification"), the publication
was on an occasion protected by law ("privilege"), the
words were fair comment on a matter of public interest ("fair
comment") or the publication was a "responsible
communication" on a matter of public interest.
These defenses are highly technical in nature. Complex issues of
malice at law or in fact can defeat some of the defenses. If you
are at the point where you are considering your defenses, you
should also be at the point where you are retaining counsel.
The damages awarded to a successful plaintiff, to be paid by the
unsuccessful defendant, can range from tens of thousands of dollars
to more than a million, depending on the circumstances of the
case.
Courtney Love recently settled a defamation case against her
arising from her Twitter postings about a dress designer. The
settlement: $450,000 – a high price to pay for not
respecting the limits to freedom of speech.
Criminal Action
An even higher price can be paid if convicted of the offence of
defamatory libel. This offence may be punished by imprisonment for
a term of up to two years. If one publishes a defamatory libel that
he or she knows to be false, the maximum penalty rises to five
years imprisonment.
Defamatory libel is defined in the Criminal Code of Canada as
"matter published, without lawful justification or excuse,
that is likely to injure the reputation of any person by exposing
him to hatred, contempt or ridicule, or that is designed to insult
the person of or concerning whom it is published."
Not only is defamatory libel a criminal offence, but so too are
blasphemous libel, seditious libel and hate propaganda.
Are these archaic holdovers: dusty, little used and long
forgotten?
No.
In April of 2011 charges of defamatory libel were brought
against Karen McKinnon, a former councilor of the town of
Drumheller, Alberta. In August 2011, McKinnon elected to have
her case tried at Queen's Bench with a judge and jury. The
court scheduled a two-day preliminary hearing date for October
29-30, 2012.
The Drumheller Mail cites police as saying that the
charges arise after an investigation taking more than two months
and include writings that appeared on Facebook. For obvious reasons
what she wrote has not been republished.
Recommendations
RCMP Corporal Mike Black is quoted in The Drumheller Mail as saying
The Drumheller Mail
also cites Staff Sergeant Arthur Hopkins:
So be careful.
Attack the issue, not the person. Ad hominen argument
is fallacious, so avoid it. Seek not to denigrate the individual
but to elevate the level of discourse.
How do we do that? I recommend the writer's variant of the
Golden Rule:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.