There is little doubt Canadians are spending more and more time online these days. Whether it’s sharing information about their personal lives, discussing political opinions or criticizing others’, people’s lives have increasingly taken on an online presence that was practically unimaginable a few decades ago.

Media – and how people consume it – has also changed significantly, with news outlets publishing more content online, and citizens provided with new mediums through which to share their own content or opinions. Subsequently, how lawyers and the courts view defamation suits has also changed.

With this in mind, the Ontario Bar Association’s Entertainment, Media and Communications Law and Civil Litigation sections recently presented a timely lunch-hour program examining this issue, while providing updates on defamation claims and advice on what lawyers need to do when they get a call from a potential client who feels they have been defamed online or who has been served notice of a defamation claim.

For Iris Fischer, of Blake, Cassels & Graydon LLP, the first thing she needs to determine is whether someone has truly been defamed in law.

“Not everything that may be written online is the basis of a good claim,” she said, adding that engaging with the alleged defamer can exacerbate the situation. For her, looking for a way to resolve the matter short of litigation is one of the first actions lawyers and their clients should take.

If the alleged libel was online and not published in a newspaper (online or print) or broadcast on radio or television, a notice of libel isn’t needed as a matter of law, she said, although, she advises that this could be something to look at doing anyway, since it can help avoid potential problems. Putting a person on notice can also lead to a speedier resolution.

Lillianne Cadieux-Shaw, of St. Lawrence Barristers LLP, said that lawyers need to consider that the best option is sometimes to do nothing. She brought up the “[Barbra] Streisand effect”, describing how the celebrity tried to stop people from downloading photos of her home from a public California database. The publicity of her actions, however, led to more downloads.

Moderator Alex Smith, of Henein Hutchison LLP, said that lawyers and their clients can never assume that taking action will improve the situation, calling to mind the idea of “first do no harm”.

“People are upset, so sometimes you’re not just fanning the flames, but it is like pouring gasoline on the fire,” he said, adding that you want to avoid the “unworthy interlocutor” problem.

All the panellists agreed that determining with your client how bad what was said about them was and the potential harm of the comments are paramount. So, too, is figuring out if litigation will be worth it.

“If it is upsetting to them, but doesn’t fall into being harmful, then counsel them to consider that it might not be worth it,” Fischer said, adding that clients must be willing to be scrutinized and deal with potential evidence that what they said about you was true. She reminded everyone that this is, of course, also applicable to the defences of defamation.

If the ultimate determination is to proceed with legal action, everyone agreed that gathering evidence as quickly as possible is critical to a successful case.

“Capture as much as you can as soon as you can. People may pull down posts, so you want to have them captured,” said Niklas Holmberg, of Lax O’Sullivan Lisus Gottlieb LLP, adding that this needs to be done carefully and comprehensively. “You don’t just want your client to capture comments, but also how things were shared, as well as the reach of the post.”

He also cautioned lawyers who may decide to gather the evidence themselves.

“Lawyers should be wary of doing this,” he said. “If you want to put them before the court and there are questions about how it was captured, you don’t want to be giving evidence about how it was captured.”

Since the writers of Ontario’s Libel and Slander Act were incapable of considering online statements when writing the legislation, lawyers also need to examine whether online posts can be considered as being published or broadcast. This not only helps determine the likely success of legal action, but can be used to figure out what the possible remedies might be.

About the author

Michael Speers is OBA's media and communications specialist.