In the recent decision of I Buy Beauty LLC v. Dong, 2024 BCSC 815, the Supreme Court of British Columbia (the "Court") found a professional YouTuber liable for defamation and awarded $350,000 in damages, including aggravated and punitive damages, to the corporate plaintiff and its CEO.
The Court denounced the defendant's conduct, finding that he had caused "profound harm" to the reputation of the plaintiffs and that he "demonstrated a total lack of contrition." The defendant's conduct included falsely and publicly describing the plaintiffs as having engaged in criminal activity, including stealing credit card information and funds from customers and money laundering. The defendant encouraged viewers of his social media content to report the plaintiffs to criminal authorities.
This decision reaffirms that courts will intervene when speech becomes defamatory and may be inclined to award significant damages in cases involving repeated defamatory statements, particularly when such statements are widely broadcast on public platforms.
Facts
The plaintiffs, I Buy Beauty LLC ("the Company"), operating under the brand "Fastboy Marketing," along with the Company's CEO, Vuong Pham, filed a defamation lawsuit against YouTuber Phil Dong. Mr. Dong, who is known for his Vietnamese-language videos, allegedly published defamatory content against the plaintiffs across multiple platforms, such as Mr. Dong's YouTube channels, a GoFundMe page, and LinkedIn, over the course of almost a year and sometimes as frequently as multiple times a day.
Mr. Dong made various assertions that the plaintiffs were involved in unlawful activities, including stealing personal and financial data of their customers, money laundering, and fraud. Mr. Dong made additional statements suggesting that Mr. Pham had associations with communism. Mr. Dong's assertions also led to threats of violence against Mr. Pham and his family.
Procedural History
In 2022, the plaintiffs successfully obtained an interlocutory injunction restraining Mr. Dong from posting further statements about the plaintiffs and removing previously posted offending material. However, Mr. Dong ignored the order, and a warrant was issued for his arrest. After his release from custody, Mr. Dong finally complied with the injunction.
Analysis
A defamatory statement is one that lowers a person's reputation in the eyes of a reasonable person. To establish defamation, the plaintiffs had to prove three elements: 1) the statements were directed to the parties (the plaintiffs); 2) the statements were defamatory in nature; and 3) the statements were published by someone other than the plaintiffs (Grant v. Torstar Corp., 2009 SCC 61). Even if the statement is true, it is presumed false unless the defendant proves otherwise (Hardi in Holden v. Hanlon, 2019 BCSC 622).
The Court found that the statements in question were defamatory because they targeted the plaintiffs, had the potential to damage their reputation in the eyes of a reasonable person, and were published by Mr. Dong. Among the videos submitted to the Court as part of the plaintiffs' evidence, all of them contained statements or written comments that referred to Mr. Pham, his family, the Company, or the Company's employees by name. The Court found that the statements accusing the plaintiffs of illegal activities would lower their reputation in the eyes of a reasonable person. Furthermore, allegations regarding one's association with communism were highly offensive within at least a portion of the Vietnamese diaspora, and Mr. Dong's statements against Mr. Pham to such effect exacerbated the damage to Mr. Pham's reputation.
Apart from one LinkedIn post, Mr. Dong admitted authorship of the statements made on his social media accounts. Notably, the Court ruled that Mr. Dong had an obligation, as an account administrator, to actively monitor and control comments on his social media pages containing defamatory content or calls to violence (Pritchard v. Van Nes, 2016 BCSC 686). Consequently, Mr. Dong was found responsible for the comments on his social media pages as well as the content he authored.
While the Court addressed potential defenses like truth and fair comment, Mr. Dong had not submitted any evidence or defenses and merely denied defamation. Without evidence supporting his claim that Mr. Pham and the Company were money launderers, thieves, scammers, or fraudsters, Mr. Dong was found liable for defamation, leading the Court to assess damages and issue a permanent injunction.
Damages
The Court awarded $250,000 in general damages to the plaintiffs. In assessing damages, the Court emphasized that the severity of defamation can significantly influence the quantum of damages. The defamatory statements made by Mr. Dong were particularly egregious, widespread, and high in volume. Mr. Dong's status as a popular YouTuber amplified the reach and impact of his defamatory statements, resulting in tangible harms of violence and business loss for Mr. Pham and the Company (Google Inc. v. Equustek Solutions Inc., 2017 SCC 34). Of note, Mr. Dong's conduct included persistent publication despite the injunction and an absence of any apology.
The Court further awarded $50,000 in aggravated damages and $50,000 in punitive damages. Mr. Dong's persistent and escalating campaign of defamation against Mr. Pham was deemed to be malicious in nature due to its volume and reach. Moreover, Mr. Dong's conduct was characterized as profit-driven defamation and deemed to warrant punitive damages for future deterrence.
Furthermore, the Court granted a permanent injunction against Mr. Dong due to: (i) concerns that Mr. Dong would continue his conduct and that the plaintiffs would not be able to enforce monetary judgment (Hudson v. Myong, 2020 BCSC 517); and (ii) his lack of repentance.
Takeaways:
- With the rise of YouTube content creators publishing "opinion" videos, this decision reaffirms that defamatory statements made online are not immune to judicial scrutiny. In fact, the court specifically clarifies that defamatory statements made online may be subject to a higher quantum of damages due to the widespread accessibility of online content.
- This decision also confirms that the court will not hesitate to sanction egregious or malicious conduct by awarding aggravated or punitive damages.
- While there may be public interest in business activities, statements that are not recognizable as comments and are not grounded in fact will not be shielded by the fair comment defence. Such a delineation underscores the balance the law must strike in upholding both free expression and accountability in public discourse.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2024