In a recent decision, the Ontario Superior Court of Justice awarded a corporate executive general damages of $100,000, aggravated damages of $50,000, punitive damages of $50,000 and approximately $50,000 in legal fees against an anonymous "John Doe" defendant who had persisted in posting defamatory comments about executive on a website hosted by Blogger, a Google web service.
The plaintiff was a lawyer and a director of legal affairs at Quebecor Media Inc. ("Quebecor"). The defendant was unknown.
In 2010, the plaintiff became aware that defamatory statements about him were being posted on the website hosted by Blogger. The Blogger posts stated that the plaintiff was "a lying crook, a Nazi, a pedophile and rapist, a thief and a morally repugnant imbecile". The court found that, "The plaintiff is obviously none of those things".
In May of 2010, the defendant sent emails to senior Quebecor executives with links to the Blogger posts.
In June of 2010, the plaintiff's lawyers commenced the action against "John Doe No. 1". The defendant subsequently posted further defamatory posts.
The plaintiff brought a motion to compel Google to disclose information that would identify the defendant. Although the defendant responded from the same email account that he had used to communicate with Quebecor's management, his identity was never discovered.
In July and August of 2010, Google removed the Blogger posts. However, the defendant commenced posting defamatory statements about the plaintiff on another website. In the meantime, the plaintiff continued to attempt to identify the defendant. He obtained an order extending the time for service of the statement of claim. Plaintiff's counsel sent emails to the defendant at the email account that he had been known to use. The defendant responded by email that "We are not formally served with notice of any impending proceeding with respect to this matter. As far as we are concerned, we have no duty or obligation to meaningful [sic] respond to or appear at any proceeding."
The plaintiff then obtained an order validating service of the statement of claim and ordering that the subsequent defamatory posts be removed. The motions judge also ordered that the defendant identify himself, however he refused to do so. The plaintiff subsequently noted the plaintiff in default.
On February 16, 2012, the registrar of the court administratively dismissed the action. At the end of February 2012, plaintiff's counsel received a copy of the registrar's dismissal order. There had been no previous notice from the registrar. On a motion brought by the plaintiff, the court set aside the administrative dismissal and granted judgment for defamation.
Justice Goldstein of the court held that "there are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable members of the public and then hides behind the electronic curtain provided by the internet". The court found that the posts were defamatory and because the defendant had already been noted in default, granted judgment accordingly.
The court awarded general damages based on the principle that such damages are presumed in a defamation case on the basis that harm automatically and logically follows from the very publication of the false statements. At the motion the plaintiff sought and the court granted general damages in the amount of $100,000. The court awarded aggravated damages on the basis that the defendant was guilty of high-handed, spiteful and vicious conduct. The court found that the circumstances of this case were particularly egregious. The defendant had never apologized, retracted or in any way sought to justify his statements. Even in the face of a statement of claim, the defendant continued to make defamatory posts. The court awarded $50,000.
The court held that this case was an obvious one for punitive damages. There is no question that the defendant acted maliciously and oppressively. The defendant's actions offended the court's sense of decency and because the court reflected community standards, it sent a strong message of denunciation and deterrence. The court awarded $50,000.
Finally, the court held that because costs are within the discretion of the court, it awarded substantial indemnity costs because the defendant persisted on driving up the plaintiff's legal costs even in the face of a continuing refusal to comply with a court order.
Regards,
Blair
Showing posts with label defamation. Show all posts
Showing posts with label defamation. Show all posts
Friday, June 21, 2013
Tuesday, October 2, 2012
Supreme Court of Canada on harmful effects of Cyberbullying
Here is a synopsis of a recent decision of the Supreme Court of Canada on cyberbullying:
A 15‑year old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.
Held: The appeal should be allowed in part.
The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people’s privacy rights based on age, not the sensitivity of the particular child. In an application involving cyberbullying, there is no need for a child to demonstrate that he or she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament.
While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon. Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them — and to the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should be allowed.
In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm to press freedom. The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm. But once the girl’s identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non‑identifying content of the profile. If the non‑identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her. The public’s right to open courts –and press freedom – therefore prevail with respect to the non‑identifying Facebook content.
Regards,
Blair
A 15‑year old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.
Held: The appeal should be allowed in part.
The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people’s privacy rights based on age, not the sensitivity of the particular child. In an application involving cyberbullying, there is no need for a child to demonstrate that he or she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament.
While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon. Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them — and to the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should be allowed.
In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm to press freedom. The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm. But once the girl’s identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non‑identifying content of the profile. If the non‑identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her. The public’s right to open courts –and press freedom – therefore prevail with respect to the non‑identifying Facebook content.
Regards,
Blair
Wednesday, May 2, 2012
Supreme Court of Canada - Conrad Black can sue for defamation in Ontario
Breeden v. Black, 2012 SCC 19
Conrad Black ("B") is a well‑known business figure who established a reputation as a newspaper owner and publisher in Canada and internationally. While B served as the chairman of a publicly traded U.S. company, the legitimacy of certain payments that had been made to B were questioned. A special committee formed to conduct an investigation concluded that the company had made unauthorized payments to B. The committee’s report was posted on the company’s website, which was accessible worldwide, along with press releases containing contact information directed at Canadian media. Statements were also published in the company’s annual report summarizing the committee’s findings.
B commenced six libel actions in the Ontario Superior Court against the ten appellants, who are directors, advisors and a vice‑president of the company. B alleges that the press releases and reports issued by the appellants and posted on the company’s website contained defamatory statements that were downloaded, read and republished in Ontario by three newspapers. He claims damages for injury to his reputation in Ontario.
The appellants brought a motion to have the actions stayed on the grounds that there was no real and substantial connection between the actions and Ontario, or, alternatively, that a New York or Illinois court was the more appropriate forum. The motion judge dismissed the motion, finding that a real and substantial connection to Ontario had been established and that Ontario was a convenient forum to hear the actions. The Court of Appeal unanimously dismissed the appeal. It found that a real and substantial connection was presumed to exist on the basis that a tort was committed in Ontario, and that the appellants had failed to rebut this presumption. It also found that there was no basis on which to interfere with the motion judge’s exercise of discretion with regard to forum non conveniens.
Applying the Van Breeda analysis, the SCC dismissed the appeal. The issue of assumption of jurisdiction was determined based on a presumptive connecting factor ― the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party, which, in this case, occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication, and that the original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication. The republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule. In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.
Having found that a real and substantial connection exists between the action and Ontario, the court considered whether the Ontario court should decline to exercise its jurisdiction on the ground that the court of another jurisdiction was clearly a more appropriate forum for the hearing of the actions. Under the forum non conveniens analysis, the burden is on the party raising the issue to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum. The factors to be considered by a court in determining whether an alternative forum is clearly more appropriate are numerous and will vary depending on the context of each case. The forum non conveniens analysis does not require that all the factors point to a single forum, but it does require that one forum ultimately emerge as clearly more appropriate. The decision not to exercise jurisdiction and to stay an action based on forum non conveniens is a discretionary one, and the discretion exercised by a motion judge will be entitled to deference from higher courts, absent an error of legal principle or an apparent and serious error on the determination of relevant facts.
The Court found that both the courts of Illinois and Ontario are appropriate forums for the trial of the libel actions. The factors of comparative convenience and expense for the parties and witnesses, location of the parties, avoidance of a multiplicity of proceedings and conflicting decisions and enforcement of judgment favour the Illinois court as a more appropriate forum, whereas the factors of applicable law and fairness to the parties favour the Ontario court. In the end, however, considering the combined effect of the relevant facts, and in particular the weight of the alleged harm to B’s reputation in Ontario, and giving due deference to the motion judge’s decision, the Illinois court did not emerge as a clearly more appropriate forum than an Ontario court for the trial of the libel actions.
Here is a link to the decision http://scc.lexum.org/en/2012/2012scc19/2012scc19.html
Regards,
Blair
Conrad Black ("B") is a well‑known business figure who established a reputation as a newspaper owner and publisher in Canada and internationally. While B served as the chairman of a publicly traded U.S. company, the legitimacy of certain payments that had been made to B were questioned. A special committee formed to conduct an investigation concluded that the company had made unauthorized payments to B. The committee’s report was posted on the company’s website, which was accessible worldwide, along with press releases containing contact information directed at Canadian media. Statements were also published in the company’s annual report summarizing the committee’s findings.
B commenced six libel actions in the Ontario Superior Court against the ten appellants, who are directors, advisors and a vice‑president of the company. B alleges that the press releases and reports issued by the appellants and posted on the company’s website contained defamatory statements that were downloaded, read and republished in Ontario by three newspapers. He claims damages for injury to his reputation in Ontario.
The appellants brought a motion to have the actions stayed on the grounds that there was no real and substantial connection between the actions and Ontario, or, alternatively, that a New York or Illinois court was the more appropriate forum. The motion judge dismissed the motion, finding that a real and substantial connection to Ontario had been established and that Ontario was a convenient forum to hear the actions. The Court of Appeal unanimously dismissed the appeal. It found that a real and substantial connection was presumed to exist on the basis that a tort was committed in Ontario, and that the appellants had failed to rebut this presumption. It also found that there was no basis on which to interfere with the motion judge’s exercise of discretion with regard to forum non conveniens.
Applying the Van Breeda analysis, the SCC dismissed the appeal. The issue of assumption of jurisdiction was determined based on a presumptive connecting factor ― the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party, which, in this case, occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication, and that the original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication. The republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule. In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.
Having found that a real and substantial connection exists between the action and Ontario, the court considered whether the Ontario court should decline to exercise its jurisdiction on the ground that the court of another jurisdiction was clearly a more appropriate forum for the hearing of the actions. Under the forum non conveniens analysis, the burden is on the party raising the issue to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum. The factors to be considered by a court in determining whether an alternative forum is clearly more appropriate are numerous and will vary depending on the context of each case. The forum non conveniens analysis does not require that all the factors point to a single forum, but it does require that one forum ultimately emerge as clearly more appropriate. The decision not to exercise jurisdiction and to stay an action based on forum non conveniens is a discretionary one, and the discretion exercised by a motion judge will be entitled to deference from higher courts, absent an error of legal principle or an apparent and serious error on the determination of relevant facts.
The Court found that both the courts of Illinois and Ontario are appropriate forums for the trial of the libel actions. The factors of comparative convenience and expense for the parties and witnesses, location of the parties, avoidance of a multiplicity of proceedings and conflicting decisions and enforcement of judgment favour the Illinois court as a more appropriate forum, whereas the factors of applicable law and fairness to the parties favour the Ontario court. In the end, however, considering the combined effect of the relevant facts, and in particular the weight of the alleged harm to B’s reputation in Ontario, and giving due deference to the motion judge’s decision, the Illinois court did not emerge as a clearly more appropriate forum than an Ontario court for the trial of the libel actions.
Here is a link to the decision http://scc.lexum.org/en/2012/2012scc19/2012scc19.html
Regards,
Blair
Monday, January 4, 2010
Defamation : "Responsible Journalism" as a defence
The Supreme Court of Canada recently released two decisions which will have a major impact on defamation cases.
In Quan v. Cusson (Nov. 9, 2006)(32420) Dec. 22, 09 C was an Ontario police constable who, shortly after the events of September 11, 2001 and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. A newspaper published articles alleging that C had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. C brought a libel action against the newspaper and the reporters.
In Grant v. Torstar Corp. (Nov. 28, 2008)(32932) Dec. 22, 09 G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course. The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of G’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide
In both cases the SCC decided that there is a "responsible journalism" defence in Ontario, including for bloggers, and ordered that there be a new trial.
The "responsible journalism" defence has been adopted by the English courts and gives greater scope to freedom of expression. The defence allows publishers to escape liability if they can establish that they acted responsibly in attempting to verify information on a matter of public interest. The SCC found that this defence represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information.
This change to the law creates a new defence and leaves the traditional defence of qualified privilege intact. To be protected by the defence of responsible communication the publication must be on a matter of public interest and the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.
Where the defence is raised the trial judge first decides whether the publication is on a matter of public interest and if so, the jury then decides whether the standard of responsibility has been met.
In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.
The following factors may aid the jury in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and (h) any other relevant circumstances.
Here are the links to the decisions:
http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html
http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html
Regards,
Blair
In Quan v. Cusson (Nov. 9, 2006)(32420) Dec. 22, 09 C was an Ontario police constable who, shortly after the events of September 11, 2001 and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. A newspaper published articles alleging that C had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. C brought a libel action against the newspaper and the reporters.
In Grant v. Torstar Corp. (Nov. 28, 2008)(32932) Dec. 22, 09 G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course. The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of G’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide
In both cases the SCC decided that there is a "responsible journalism" defence in Ontario, including for bloggers, and ordered that there be a new trial.
The "responsible journalism" defence has been adopted by the English courts and gives greater scope to freedom of expression. The defence allows publishers to escape liability if they can establish that they acted responsibly in attempting to verify information on a matter of public interest. The SCC found that this defence represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information.
This change to the law creates a new defence and leaves the traditional defence of qualified privilege intact. To be protected by the defence of responsible communication the publication must be on a matter of public interest and the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.
Where the defence is raised the trial judge first decides whether the publication is on a matter of public interest and if so, the jury then decides whether the standard of responsibility has been met.
In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.
The following factors may aid the jury in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and (h) any other relevant circumstances.
Here are the links to the decisions:
http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html
http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html
Regards,
Blair
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