Canada: Making Social Networks Remediate Defamation Enabled By Their Platforms: McKeogh v Facebook

Overview

Recently, the Irish High Court came up with a novel solution in a social media defamation case involving an unfortunate young student who was grossly defamed when certain persons wrongly identified him as the man seen in a video posted on YouTube exiting a taxi in Dublin without paying the fare.1 The decision illustrates the difficulties an innocent person who is defamed on social media can face when trying to have the material removed, particularly where the Internet intermediaries who may have the ability to help refuse to cooperate. In this case the High Court ordered the experts from Google and Facebook, the Internet intermediaries, to meet with the plaintiff's expert to procure a solution that can be incorporated into a mandatory injunction.

Facts

A taxi driver posted a video clip on YouTube and asked if anyone could identify the young man in question. One person named the plaintiff as the culprit. Thereafter, in the words of the trial judge, "a miscellany of the most vile, crude, obscene and generally obnoxious comments about him appeared on both YouTube and on Facebook."

The plaintiff brought an application for mandatory injunctive relief that all material defamatory of the plaintiff be permanently taken down from Google and Facebook sites on a worldwide basis. Google and Facebook refused any assistance, even after they were asked by the judge to have their experts try to come up with a solution. The task may not have been an easy one, or even possible, but the Court strongly believed that Google and Facebook should have done something to help once it became incontrovertible that the accusations were inaccurate and egregiously defamatory, especially since the postings went viral enabled by use of their networks.

Discussion

Since it was an application for interlocutory injunctive relief, the Court had to be satisfied that the plaintiff had raised a fair issue to be tried, that damages would not be an adequate remedy for the plaintiff, and that the balance of convenience lay in favour of granting the injunction.

The Court found that the plaintiff had raised a fair question as to whether the defendants could be liable as publishers of the materials on their websites and that the plaintiff had raised a fair question as to whether Google and Facebook came within a safe harbor under the European Union e-Commerce Directive. The Court did not explore these issues further.

The Court then turned to the question of whether damages would be an adequate remedy for the plaintiff. The Court concluded it would not. Google and Facebook may not have been responsible in the first instance for the publication of the defamatory material. However, their platforms enabled the publication of the defamatory content. As such they ought to render assistance. The plaintiff could not take down the materials himself, while the defendants likely had the technical expertise and capability to help. Further, monetary damages could not remedy the damages the plaintiff would suffer if the materials remained online.

The Court also decided that the balance of convenience lay in favour of granting a mandatory injunction. However, such orders must be clear as to what is expected of the defendants in order to fully comply with the order. The Court did not have enough information to make such an order, so it decided to be "imaginative in trying to fashion an appropriate remedy for the plaintiff." The Court took the unusual step of ordering the parties' experts meet to report on the technical means available to help the plaintiff.

It is not yet known what the experts have come up with. It is worth watching to see what, if any, mandatory injunctive relief is finally ordered or whether the case settles.

Defamation in Canada

In Canadian defamation cases the plaintiff bears the onus of proving three things:

  1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
  2. that the words in fact referred to the plaintiff; and
  3. that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

If these elements are established on a balance of probabilities, falsity and damage are presumed.2 After those elements are established, the onus shifts to the defendant to raise a valid defense.

Nesbitt v Neufeld is one of few Canadian defamation cases involving social media to-date.3 The Court discussed the interplay between defamation and the Internet, indicating that "the extent of publication does play a role in determining the seriousness of the defamatory conduct." Further, it noted that Internet communications may create an even greater risk that the defamatory remarks are believed, due to their anonymous and impersonal nature.4 In Nesbitt, the damages were limited because the claimant admitted there had been little personal or professional backlash. There was also no need to consider involving the Internet intermediaries because the defamatory Facebook page was removed by the defaming party once it was reported to the police.

Recently, Brian Burke, former general manager of the Toronto Maple Leafs, began a defamation lawsuit naming seventeen online commentators as defendants.5 The commentators are only identified by their online handles, essentially making them anonymous. This case will be followed by many, not only for public interest, but also to see how the Court calculates damages, if any.

To date there have been no Canadian cases that involve plaintiffs seeking injunctions against Internet intermediaries as there is in McKeogh. It will be interesting to see how the Canadian courts decide this issue when it inevitably arises in Canada.

Sara Tebbutt is a Summer Student at McCarthy Tétrault.

Footnotes

1 McKeogh v Facebook Ireland Limited et al, Record No. 2012/254P, High Court Ireland, July 15, 2013 [McKeogh].

2 Grant v Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640 at para 28.

3 Nesbitt v Neufeld, 2010 BCSC 1605 [Nesbitt].

4 Ibid citing Barrick Gold Corporation v Lopehandia et al., 239 DLR (4th) 577, 2004 CanLII 12938 (ON CA) at para 31.

5 Burke v John Doe, 2013 BCSC 964.

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