What happens when someone posts a terrible comment about you on social media? Or writes a blog calling you out for something you know is not true?

As Canadians, our Charter gives us the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. However, that freedom of speech could become costly if someone proves that what was said harmed their reputation. Defamation is a civil tort which means you can sue someone for harming your reputation.

In the days before the internet, Facebook and other social media, defamation damages were usually capped to about $20,000.00 but a lot has changed in the last ten years.

The internet has completely changed the playing field. The Ontario Court of Appeal explains why defamation in the modern age is so much more serious:

Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed.

…Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

Barrick Gold Corporation v. Lopehandia et al. (2004),  71 O.R. (3d) 416 (C.A.)  at paras. 31 and 34.

In that particular case, damages of $75,000 were awarded to the Plaintiff. However, not all remarks are considered to be defamatory. There is a three part test to qualify a comment as defamatory:

(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.

Grant v. Torstar Corp., [2009] S.C.C. 61

This means that the comment should actually attack your character as a person, not merely insult your feelings. Calling someone an “idiot” would not qualify as defamation but calling a professional “incompetent at their job” would definitely harm their reputation and qualify as defamation.

Once a plaintiff proves all of the three items above, the defendant can only attempt to use one of the permitted defences to escape liability. If none of the defences are successful, the plaintiff will win the lawsuit. This is because defamation is a tort of strict liability, this means that it is not required that the defendant specifically intended to do harm, or even that the defendant was careless. The three part test only has to be established on a balance of probability.

At that point, the court will consider the amount of damages. The court will consider loss of self-esteem, extent of hurt feelings, and actual damage caused by the defamatory words. The damage caused has to be something substantial such as loss of a job opportunity or loss of standing in a community. If you are self-employed and the defamatory comment results in you losing customers, the court will award significant damages for that.

In the famous case of Hill v. Church of Scientology, the court outlined the following factors that are to be considered when awarding damages:

(1)               the plaintiff’s position and standing;

(2)               the nature and seriousness of the defamatory statements;

(3)               the mode and extent of publication;

(4)               the absence or refusal of any retraction or apology;

(5)               the whole conduct and motive of the defendant from publication through judgment;

(6)               any evidence of aggravating or mitigating circumstances.

If the defendant was asked to correct the defamatory comment or remove it entirely and they chose not to, that would be considered as an aggravating factor that would increase the amount of damages awarded. However, if an apology was issued it could lessen the amount of damages.

Usually, the first step  before litigation is the sending a notice, pursuant to the Libel and Slander Act, section 5.1, notifying the person that they had made a defamatory statement and requiring it to be removed with an apology.

In a case where the notice was totally ignored and the person continued to make even worse defamatory statements, the judge awarded $50,000 in damages for defamation, $20,000 for aggravating the situation, and another $20,000 for recklessness and lack of concern in involving the parents of the plaintiff (Nassri v. Homsi, [2017] ONSC 4554).

General damages are awarded for three reasons:

(1) consolation to the plaintiff for the distress suffered from the publication of the defamation;

(2) to repair the harm to reputation, including, where relevant, business reputation; and

(3) as a vindication of reputation.

Mina Mar Group Inc. v. Divine, [2011] O.J. No. 785, at paras. 11-13

If you believe your reputation has been negatively impacted by what someone has said about you, talk to a litigation lawyer and see if you can initiate a claim for defamation. Obtaining a judgement against the offender clears up your reputation and can assist with mitigating the damage caused!