• Damages for Online Defamation
  • March 21, 2013 | Author: Owen Bourns
  • Law Firm: Perley-Robertson, Hill & McDougall LLP/s.r.l. - Ottawa Office
  • [...] the Internet is also potentially a medium of virtually limitless international defamation [emphasis added].

    - R.A. Blair J.A., Ontario Court of Appeal quoting Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 2001)

    The hay day for people to retreat to the internet and anonymously and publicly defame others behind a veil of secrecy, without feat of liability, are coming to an end.

    If someone has been defamed online then the initial hurdle is always identifying who the online defamer was. Some of those issues were touched on in a previous article “Defamation on the Internet/The Anonymous Defamer”.

    Assuming; (a) you have found the online defamer, (b) the postings are truly defamatory, and (c) the internet postings have been removed, then the next important issue is to determine what the amount of damages available might be.

    When words are defamatory, damages are presumed and are awarded at large. This signifies that the Courts are entitled to make a subjective assessment of damages without requiring proof of specific financial loss. General damages are awarded for the injury sustained by an individual plaintiff from the lessening of the esteem in which he or she is held in the community, and the injury caused to his or her feelings.

    In Leenen v. Canadian Broadcasting Corp. the Court set out factors to consider when assessing general damages:

    a) the seriousness of the defamatory statement;

    b) the identity of the accuser;

    c) the breadth of distribution of the publication of the libel;

    d) republication of the libel;

    e) the failure to give the audience both sides of the pictures and not presenting a balanced review;

    f) the desire to increase one’s professional reputation or to increase ratings of a particular program;

    g) the conduct of the defendant and defendant’s counsel through to the end of trial;

    h) the absence or refusal of any retraction or apology; and

    i) the failure to establish a plea of justification.

    In the 2004 landmark case Barrick Gold v Lopehandia general damages were awarded for injury to a corporation’s business reputation and no proof of actual pecuniary loss was required.

    In Barrick Gold, on a motion for default judgment, the Plaintiff corporation successfully received judgment in the amount of $15,000. The Plaintiff successfully appealed the quantum of general damages awarded and the refusal to award any punitive damages or grant injunctive relief.

    The Ontario Court of Appeal significantly increased the award of general damages from $15,000 to $75,000 because the motions judge had failed to take into account the instantaneous and widespread harm the internet can have on the reputation of an individual or corporation due to its “interactive and globally all-pervasive nature.” The Court of Appeal also added $50,000 for punitive damages.

    In Barrick Gold, the defendant, Mr. Lopehandia, posted defamatory messages on websites that were dedicated to providing information to those interested in the gold mining industry. In the Court of Appeal judgment, Blair J.A. noted that the motion judge’s conclusion on the quantum of general damages was based on the antiquated assumption that the defendant’s messages would not be taken seriously by internet users since they contained capitals, different pronunciation and were often emotional and incoherent. However, Blair J.A. disagreed finding that the internet is not a traditional medium of communication and that its nature and manner of presentation are evolving and, therefore, an “internet dialogue style” does not imply that postings will not be taken seriously.

    Blair J.A. further indicated that, in fact, defamation on the internet can be that of a more harmful nature because;

    [...] communication via the Internet is instantaneous, seamless, inter-active, 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.

    The Court of Appeal also found that punitive damages were appropriate because
    the defamatory statements were “vicious, spiteful, wide-ranging in substance, and world-wide in scope”.

    Therefore, in Barrick Gold, a corporate plaintiff was awarded $125,000 without having to show any specific proof of financial loss.

    That said, an award to a corporation will generally be lower than damages received by an individual who can receive compensation both for loss of reputation and injured feelings, whereas a company cannot.

    In the 2010 B.C. decision in the defendant had authored numerous postings on an internet website falsely alleging illegal activities on the part of the plaintiffs, including allegations of fraud, theft, stock manipulation, and fraud on the Court. The plaintiff corporations were awarded $60,000 each and the plaintiff individual was awarded $125,000. The individual plaintiff also received $75,000 in aggravated damages and $25,000 in punitive damages. In this case it was clear that the defendant had set out on a mission to harm the plaintiffs by attacking their professional reputations online.

    Lastly, in Nesbitt v. Neufeld, the plaintiff’s ex-husband created a Facebook group page about her. The page contained statements about her past three divorces, suicide attempts, an affair with a married man, and a boyfriend who had been deported to Egypt for being a male prostitute. Justice Crawford held that the statements on the Facebook page were defamatory and were intended to embarrass the plaintiff. The plaintiff was awarded $40,000 in damages for both breach of privacy and defamation.

    The landscape is changing and the Courts are particularly prepared to punish those who, with malice, engage in a pattern of online defamation intended to harm their target. Further, it is no longer safe to assume that damages will only be nominal in nature unless a plaintiff can prove economic loss. Rather, the Courts are now comfortable, using the principles above, to find general damages, aggravated and punitive damages in the tens, if not hundreds, of thousands.