By: Craig Lopes, author, and Wesley Jackson, editor
Clearly, the Internet has changed the way businesses communicate. People have the ability to make comments online that travel greater distances and to larger audiences than ever before. As a result, a defamatory online comment can be especially damaging to its victim’s reputation; which can attract legal liability if it is harmful to another’s reputation. Bloggers, trolls, tweeters, posters and commentators expose themselves to liability for the tort of Defamation if their words cross the line from the merely negative to the slanderous. Business owners may also be exposed to liability by the online activities of their employees engaged in social media. Business owners must, as a basic measure, protect themselves against liability with clearly defined internet policies, and employment contracts that govern the employees’ role and responsibilities when online.
There are defenses to protect against liability in Defamation and Slander. The most basic protection is that of Truth. If a comment is true, there is generally no liability. Other communications are Privileged, such pleadings in a lawsuit, even though the Truth is a matter yet to be determined.
Another common defence in the realm of media is that of “Fair Comment” pertaining to statements that are made concerning matters of public interest, based on fact, and clearly identifiable as an opinion and not an assertion of truth. Here, the Courts will generally protect your “right to be wrong.”
In 2009, the Supreme Court of Canada recognized a new defense, one of “Responsible Communication.” Designed to deal with the evolving realities of social media and Internet communication, Responsible Communication will generally protect journalists and other media, including Bloggers, from lawsuits if they diligently try to verify information in matters of public concern. For example, if a news story dealt with a controversial police shooting incident, a local resident could generally make comments of a defamatory nature, provided it was clear that the statements were the resident’s opinion, and be shielded by the Fair Comment defense. The same comments posted online by a Blogger, assuming they had done thorough research, could be also protected by the defence of Responsible Communication, even where it is not expressly posted as a matter of opinion.
With the emergence of social media, it remains to be seen exactly how Canadian courts will deal with defamatory comments made online. Until there is more clarity on the issue, business owners should be very careful and extremely diligent about their social media and online publication policies, and employees should be trained and educated on the due diligence standards for posting, tweeting and messaging.