The Internet & Reputation

1
The Internet Reputation

• The New Frontier,or
• The Wild West?
• Dan Carroll, Q.C.
• Field LLP
• dcarroll_at_fieldlaw.com
• January 8, 2011

2
The Internet

• Universally accessible
• Fast
• Instant send
• Instant receipt
• Variety of media text, pix, video, audio
• Not trustworthy
• Indeterminate audience
• Anonymity

3
The Star Wars Kid

• An ordinary kid fooling with a video camera.
• The video is found by four classmates.
• They post it to the internet youtube.com
• It goes viral over 20,000,000 viewings.
• http//www.youtube.com/watch?vHPPj6viIBmU

4
The Star Wars Kid

• The parents of Ghyslain Raza, the Quebec
  teenager who became a celebrity this spring after
  classmates posted on the Internet a video of him
  mimicking a Star Wars character, allege that
  their son was so humiliated by the experience
  that he had to get psychiatric care.

5
The Star Wars Kid

• The revelation is made in a lawsuit his parents
  have filed against the families of four
  classmates they accuse of maliciously turning
  their son into an object of mockery.
• Globe and Mail July 23, 2003
• http//www.theglobeandmail.com/news/technology/pa
  rents-file-lawsuit-over-star-wars-kid-video/articl
  e1008338/

6
The Star Wars Kid

• It is one thing to be teased by classmates in
  school but imagine being ridiculed by masses the
  world over.
• What happened to the Star Wars Kid can happen to
  anyone, and it can happen in an instant.
• The Offensive Internet (2010)
• Levmore Nussbaum

7
Twitter Tweets in the Courtroom

• Russell Williams criminal case sentencing
  hearing
• Journalists traumatized by lurid images racing to
  send Twitter tweets
• 140 characters lose context, crude
  unnecessary comment and description
• http//www.nationalpost.com/news/canada/Impactmed
  iatroublinglawyers/4153725/story.html

• SCC argument Crookes v. Newton
• Is publishing a link publication?
• Real time reports of the questions from the Bench
  and answers
• Choppy, no context, no ascription, cannot tell
  report from comment
• http//www.slaw.ca/2010/12/07/crookes-v-newton-liv
  e-tweets-from-scc/

8
Elements of Defamation

• Publication
• Of a statement that identifies the complainant
• Where the statement is such that it would lower
  the reputation of the complainant in the mind of
  a right thinking citizen

• To the world
• Can be words or pictures, must point to or refer
  to complainant
• An objective test, reputation He is a thief and
  a liar vs. He is a lawyer.

9
What is Defamatory?Example from Twitter

• Courtney Love - sued by a fashion designer
• Tweet shes a drug-pushing prostitute with a
  history of assault and battery
• Motion to dismiss by Love
• Satire/Hyperbole not statement of fact but
  comment
• The medium lends itself to this and context and
  tenor negate the impression the author seriously
  is maintaining an assertion of fact

10
What is Defamatory? Another Example from Twitter

• Horizon Group Management Ltd. v. Amanda Bonnen
• Amanda tenant
• Sued by Horizon management company
• The Tweet contained false and defamatory matter
  of the Plaintiff, namely Who said sleeping in
  a moldy apartment wasnt bad for you? Horizon
  really thinks its OK.
• Case dismissed The Court finds the Tweet
  non-actionable as a matter of law. Huh?

11
What is Defamatory?Example from Facebook

• She acquired AIDS while on a cruise to
  AfricaWhile in Africa she was seen fucking a
  horse..I kinda feel bad for (her) but then again
  I feel WORSE for the horse
• it was not from an African cruise.it was from
  sharing needles with different heroin addicts,
  thiscaused the HIV virusshe then persisted to
  screw a baboon which caused the epidemic to
  spread
• She got aids when she hired a male prostitute
  who came dressed as a sexy fireman

12
What is Defamatory?Example from Facebook,
continued

• She is identified through a doctored picture of
  her as the devil
• Action was dismissed. The posts were
• puerile attempt by adolescents to outdo each
  other
• a vulgar attempt at humor
• But did not contain statements of fact.
• Context or setting surrounding the communication
  was one factor

13
What is Defamatory?Another Example a blog on
Google

• How old is this skank? 40 something?Shes a
  psychotic, lying, whoring,still going to clubs at
  her age, skank.
• I would have to say the first-place award for
  Skankiest in NYC would have to go to
• Skank one who is disgustingly foul or filthy
  and often considered sexually promiscuous. Used
  especially of a woman or girl.

14
What is Defamatory?Another Example a blog on
Google, continued

• Application made by the object of these comments
  model Liskula Cohen - to compel Google to
  disclose identity of the blogger
• Non-party blogger appears anonymously through
  counsel and argues
• non-actionable opinion or hyperbole
• it is trash talk ubiquitous across the
  Internet
• Court finds from context (including pictures and
  captions) that the words are not loose and vague
  insult

15
What is Defamatory?Another Example a blog on
Google, continued

• In that the Internet provides a virtually
  unlimited, inexpensive and almost immediate means
  of communication with tens, if not hundreds, of
  millions of people, the dangers of its misuse
  cannot be ignored.
• Contrast to the previous case.

16
Defenses to Defamation

• Deny any one or more of the three essential
  elements
• Not published
• Doesnt identify the complainant
• Not defamatory not capable of being defamatory
  e.g. name calling, parody
• Truth/Justification
• Fair Comment
• Responsible Communication

17
Defenses to DefamationTruth/Justification

• Applies to statements of fact
• Onus on the defendant to prove the truth of the
  sting the substance of the defamatory
  statements
• Provably true by the laws of evidence
• Witnesses
• Documents
• Big downside risk - failure to prove truth
  results in a higher damages awards and higher
  costs awards against a defendant

18
Defenses to DefamationFair Comment

• Applies to statement of comment, not fact
• On a matter of public interest
• Based on fact
• Recognizable as comment
• Fairly made, in the sense that a person could
  honestly express the opinion based on proven
  facts
• Made without malice

19
Defenses to DefamationResponsible Communication

• Applies to statements of fact
• must relate to the public interest
• must have been published responsibly
• e.g. based upon information a reasonable person
  would accept as reliable, even though later it
  may not be possible later to prove the truth of
  the defamatory statement of fact on admissible
  evidence
• e.g. a fair and neutral report of both sides of a
  dispute

20
Malice Defeats some of the Defenses to Defamation

• MALICE defeats fair comment, responsible
  communication (not truth)
• Malice is established by showing, for example
• Defendant's dominant motive was to injure the
  claimant, or
• Defendant was intentionally dishonest or was
  reckless as to the truth,or
• Defendant acted from an ulterior motive
  conflicting with the interest or duty giving rise
  to the defense
• If proven, malice defeats these defenses and
  results in a higher damages awards and higher
  costs awards against a defendant

21
From the Supremes

• An individuals reputation is not to be treated
  as regrettable but unavoidable road kill on the
  highway of public controversy
• but nor should an overly solicitous regard for
  personal reputation be permitted to chill
  freewheeling debate on matters of public
  interest.
• Justice Binnie
• WIC Radio Ltd. v. Simpson

22
From the Supremes

• Freedom of expression
• Vigorous debate
• Charter s.2(b) Everyone has freedom of
  thought, belief, opinion and expression,
  including freedom of the press and other media of
  communication.

• Protection of reputation
• Personal integrity and privacy
• The good reputation of an individual represents
  and reflects the innate dignity of the
  individual, a concept that underlies all the
  Charter rights

23
From the Supremes

• ..the traditional media are rapidly being
  complemented by new ways of communicating on
  matters of public interest, many of them online
• A review of recent defamation law suggests that
  many actions now concern blog postings and other
  online media which are potentially both more
  ephemeral and more ubiquitous than traditional
  print media.

24
From the Supremes

• While established journalistic standards provide
  a useful guide by which to evaluate the conduct
  of journalists and non-journalists alike, the
  applicable standards will necessarily evolve to
  keep pace with the norms of the new
  communications media.
• Chief Justice McLachlin
• Grant v. Torstar Corp

25
Conclusion

• It may be the Wild West
• but the Sheriff is commin to town.
• Do not get in his way.

26
To Stay out of the Sheriffs way

• Journalist
• Be accurate.
• If you wouldnt like that said about you, should
  it go in the story?
• If an opinion, is it honestly held?

• Editor
• Check facts.
• Does the statement serve a journalistic purpose
  public interest?
• Is it too extreme in content/expression to be
  credible?

27
The Internet Reputation

• The New Frontier,or
• The Wild West?
• Both.
• So be careful out there.
• QUESTIONS?
• Dan Carroll, Q.C.Field LLPdcarroll_at_fieldlaw.com
  

28
Resource links

• Star Wars Kid
• Globe and Mail article
• The Offensive Internet
• Tweets in the Courtroom
• National Post article re Russell Wililams
• Slaw.ca re Crookes v. Newton
• Courtney Love defamation suit
• NY Times article
• History and pleadings documents
• Horizon Group Management v. Amanda Bonnen
• History, pleadings and dismissal documents
• Finkle v. Facebook (defamation vs cyberbullying)
• History, pleadings and dismissal documents
• Liskula Cohen
• History, pleadings and order
• WIC Radio Ltd. v. Simpson, 2008 SCC 40
• Grant v. Torstar Corp, 2009 SCC 61
• Journalists Legal Guide, 5th edition