Social media has transformed the way humans on every continent connect and gather. It allows anyone, anywhere with internet access to share their thoughts instantly. The unfortunate reality of social media is that there will inevitably be defamatory content.
For those who are the subject of defamatory social media posts, there is legal recourse: a defamation action. However, before commencing a defamation action against the poster, it's important to understand what exactly defamation is and how the courts treat it.
What is Defamation?
The tort of defamation has developed in the courts for centuries, and it is actually an umbrella term for two related torts: libel (the written form) and slander (the spoken form).
In 2009, the Supreme Court of Canada ("SCC") released its decision in Grant v Torstar Corp., one of the most important defamation cases in Canadian history. The SCC explained that there are three elements required for defamation to have occurred:
- A defamatory statement (i.e., a statement that "would tend to lower the plaintiff's reputation in the eyes of a reasonable person");
- That in fact referred to the plaintiff; and
- The statement was published (i.e., communicated to a third party).1
The SCC further explained that defamation is a tort of strict liability. Unlike in the U.S., it is not necessary for the plaintiff to demonstrate intention or even carelessness on the part of the defendant. All that is required for the defendant to be held liable for defamation is that their actions amounted to the above three elements.2
From the Newspapers to the Digital Domain
On October 15, 2024, Justice Corthorn of the Ontario Superior Court of Justice ("ONSC") released his decision on an application by the Ontario Federation of All Terrain Vehicle Clubs (the "ATV Federation") pertaining to defamatory social media posts made by a former member of the ATV Federation.3 In The ATV Federation v Ireland, an individual named Paul Ireland was using a burner account on Facebook to disparage the ATV Federation. Mr. Ireland was previously banned by the ATV Federation from participating in its activities because he was not complying with Ontario's ATV safety standards, among other things.4 Mr. Ireland, under the pseudonym "Lone Wolf ATV-er", shared many posts with his 3,000+ followers in which he described the ATV Federation as being politically and financially corrupt, and accused it of engaging in criminal activities.5
The ATV Federation reached out to Mr. Ireland's burner account and asked him to remove the posts and to cease posting these things. Mr. Ireland refused, so the ATV Federation applied to the ONSC for an order than Mr. Ireland take down the posts and that he permanently cease making such posts.6 After the ATV Federation launched the application, Mr. Ireland did not file a notice of appearance and was thus prohibited from filing materials and giving evidence without leave of the court .7
Justice Corthorn applied the defamation test fromGrantto Mr. Ireland's posts and determined that:
- The Facebook posts were defamatory, because "allegations of ethical misconduct, criminality, and corruption, would tend to lower the reputation of the Federation in the eyes of a reasonable person";
- The Facebook posts refer to the ATV Federation; and
- By sharing these posts with thousands of followers, Mr. Ireland did indeed communicate these defamatory statements about the ATV Federation to a third party.8
Further, Justice Corthorn considered whether Mr. Ireland had raised, despite his lack of evidence, a valid defence.9 Ultimately, His Honour found that Mr. Ireland had not raised a valid defence.10
In light of the above, the ATV Federation won on its application and Mr. Ireland was therefore required to remove all his defamatory posts and refrain from posting more defamatory content directed at the ATV Federation.
Limitation Period Under theLibel and Slander Act
TheLibel and Slander Act(the "LSA") governs defamation actions in Ontario. The LSA provides for a very short limitation period in libel actions which arise out of defamatory statementspublished in a newspaper or broadcast.11
The LSA definesnewspaperas "a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year."12 Ontario courts recognize the republishing of newspapers online as falling under this definition.13 The LSA definesbroadcastingas "the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of, (a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or (b) cables, wires, fibre-optic linkages or laser beams".14
Section 5(1) of the LSA provides that, where the libel was published in a newspaper or broadcast, the plaintiff must, within six weeks of discovering the libel, serve the defendant with a notice of action. Further, s. 6 provides that a libel action must be commenced within three months of the plaintiff's discovery of the defamatory content. This is a very tight turnaround for plaintiffs; normally, the limitation period in a civil action is two years.15
Unfortunately, the Ontario courts have not yet answered the question of whether social media posts fall under the LSA's definition of broadcast. This is because, so far, almost all cases that have come before the courts have come by way of amotion. Every time one of these motions comes before the court, the motion judge explains that a trial is necessary to make a determination on this issue due to the extensive evidence required by the trial process.16
Until a court rules on this issue at trial, the applicable limitation period to a defamation action arising from a social media post is up for debate.
Conclusion
The Grant test for defamation, while originally developed in the context of a newspaper article, has been applied by Ontario courts to find that social media posts can constitute defamation. Despite the lack of clarity from the courts on whether the LSA limitation period applies to social media posts, the law is clear that those who are the subject of defamatory content on social media have legal recourse in civil court.
This blog was co-authored by articling student Rachel Weitz.
Footnotes
1. Grant v Torstar Corp., 2009 SCC 61 at para 28 [Grant].
2. Ibid.
3. See:Ontario Federation of All Terrain Vehicle Clubs v Ireland, 2024 ONSC 5723 [Ireland].
4. Ibid at para 4.
5. Ibid at para 24.
6. Ibid at paras 6-7.
7. Ibid at para 6; Rules of Civil Procedure, RRO 1990, Reg 194, r. 38.07(2).
8. Ireland, supra note 3 at paras 32-4.
9. Ibid at paras 36-43.
10. Ibid at para 44.
11. Libel and Slander Act, RSO 1990, c L12, s 2 [LSA].
12. Ibid,s 1(1).
13. See: John v Ballingall et al, 2016 ONSC 2245; See also: Shtaif v Toronto Life Publishing Co. Ltd, 2013 ONCA 405.
14.LSA, supra note 3, s 1(1)
15. Limitations Act, 2002, SO 2002, c 24, Sched B, s 4 – Basic Limitation Period.
16. Devante v Beckerman et al, 2024 ONSC 3425 at paras 23-4; Nanda v McEwan, 2019 ONSC 125 at para 77;
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