Tag: defamation

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Defamation And Social Media Family Law

“False Light” Privacy Tort Invoked in Canada for the First Time

A recent Ontario decision has invoked a little-known privacy law tort for the first time to award damages to a mother involved in a high-conflict divorce with her former spouse. Ultimately, the mother was awarded a total of $300,000, a serious condemnation of the father’s activities by the court.

High-Conflict Divorce & Social Media Posts

Just a few weeks ago, we blogged about considerations parties need to keep in mind when posting to social media through a family law dispute. This case is an excellent example of how seriously the courts take negative online behaviour, particularly when it affects minor children.

In the case at hand, the parties were married and had two children together. The father requested a divorce and a month later, the mother moved with the children to the UK out of fear for her safety. Soon, the father began a public campaign to smear the mother, which consisted of him posting videos to YouTube in which he provided personal commentary on the ongoing disputes with his former spouse. As part of these postings, he had included photos and videos depicting private family moments with his children and engaged in online bullying of them as well. One child has a neurological disorder, and in some videos the father could be seen mocking her, saying she seemed ‘drugged’ and ‘not normal’.

He had also publicly accused his former wife of a host of crimes, including kidnapping, drugging the children, theft, fraud and child abuse. He also sent emails and posted flyers directing people to his videos to increase the audience.

The mother brought an action seeking various orders including child support, spousal support, invasion of privacy, intentional infliction of mental suffering, and more.

Citing a four-tort invasion of privacy catalogue introduced by American scholar William L. Prosser and later adopted by the American Law Society in 2010, the judge considered the following four civil invasion of privacy claims:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The ONCA first recognized the first in the list, intrusion upon seclusion, in a 2012 decision. This case also recognized that the fourth tort on the list, the appropriation of a plaintiff’s name or likeness, was already an actionable claim in Ontario.

The second tort on the list, the public disclosure of private facts, was also adopted in Ontario civil law via two decisions in 2016 and 2018, respectively.

The court in the case at hand then reviewed the elements of the American tort of ‘Publicity placing a person in a false light”, which are stated as follows in the Restatement (Second) of Torts (2010):

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The court adopted this definition of the tort and further clarified that while claims falling with the tort would be likely to be defamatory, defamation is not a required element. It would be sufficient that the public misrepresentation would be highly offensive to a reasonable person.

Tort Could Have Broad Implications

This finding could have much broader implications than just family law disputes. This tort could affect businesses and individuals going forward for characterizations posted publicly that could be said to misrepresent an individual. Further, the court in this case noted that while there is a $20,000 cap on awards for intrusion upon seclusion, the same could not be said for this new action, leaving the landscape open to large awards for misrepresenting a person on a public scale.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

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Corporate & Commercial Law Defamation And Social Media Litigation

Organization Unsuccessful in Blocking Defamation Claim as SLAPP Action

B’nai Brith (BB), a charitable organization supporting the Jewish people of Canada and human rights causes in general, recently brought a motion seeking to dismiss an action for defamation brought against it by the Canadian Union of Postal Workers (CUPW). BB claimed that the action should be classified as a SLAPP action, aka strategic litigation against public participation, and therefore dismissed. The court has denied the motion, allowing the action for defamation to go forward.

A Serious Accusation of Aligning With Terrorism Supporters

CUPW, as part of its ongoing work, regularly works with similar unions in foreign jurisdictions. One such organization is a union supporting Palestinian postal workers. CUPW has also taken a polarizing stance supporting the boycott of Israeli products, due to the union’s stance on the ongoing clash between the two countries. A worker and CUPW member brought a complaint with respect to CUPW’s public position, and as a result, BB began looking into CUPW’s activities and associations.

When investigating social media accounts associated with the Palestinian union, BB found a page maintained by a senior member of the union. On the page were messages praising individuals involved in terrorist activity as heroes. BB sent this information to CUPW and called for a comment, advising that BB would be making the information public. Five days later, BB released the first in a series of press releases, with the headline, “Canadian Postal Workers Align with Pro-Terrorism Palestinian Union”. In the press releases, it claimed that CUPW had aligned itself with terrorist-supporting organizations and with the “path of violence and extremism”.

CUPW brought an action for defamation against BB, claiming that BB’s actions were malicious. CUPW pointed out that it has made public, via the union’s website, its support of a peaceful two-state solution to the conflict in the middle east as well as its stance against terrorism, violence and antisemitism. CUPW further alleged that the claims against the Palestinian union were untrue and that BB issued its press releases based on faulty research and a reckless disregard for the truth.

BB then brought an anti-SLAPP motion claiming that CUPW’s action should be dismissed, as the action sought to limit BB’s expressions on a matter of public interest.

The Test for an Anti-SLAPP Action

The court then turned to the test set out in s. 137.1 of the Courts of Justice Act, which states:

 137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The court agreed that the issue of the conflict between Israel and Palestine was a matter of public interest and that legitimate criticism of the union’s views was protected speech. However, it also found that it would be an uphill climb for BB to rely on ‘truth’ as a defence to its public claims about CUPW. While it was true that CUPW was involved in a project with the Palestinian union, it would be very difficult to establish that because of that, CUPW could be said to support terrorism. The court pointed out that the Canadian government, European Union, United Nations and the State of Israel had all sponsored projects in the past in Gaza and the West Bank. This alone would not be enough to validate a claim of supporting terrorism.

The court also found that there was evidence to suggest that BB had acted without due diligence, which may be fatal to a defence of “fair comment” in the defamation action. BB’s research into the Palestinian union consisted of a cursory review of a few social media pages, and its public statements ignored CUPW’s publicly-posted policies against terrorism, violence and antisemitism. There was also the possibility that BB had acted with malice, stemming from BB’s vast disagreement withe CUPW’s stated support of boycotting products from Israel. Rather than publicly challenging the union on that stance, the court found that BB may have simply chosen to focus on a tenuous link between CUPW and the union in Palestine in order to blow that out of proportion.

The court was cautious to say that there had been no actual finding of malice, but simply the possibility of it. As a result, the court rejected BB’s motion to dismiss the defamation action, allowing it to be fully heard in court on the merits. It will be interesting to see how the courts decide this matter as the case moves ahead. Given the controversy surrounding the subject matter, there are undoubtedly passionate advocates on both sides of the issue. The challenge faced by the courts will be to come to a decision based on legal merits presented by both parties.

At Baker & Company, we are both everyday trusted advisors and problem solvers. Our team of skilled and experienced litigation lawyers are cherry-picked for their ability to analyze cases, counsel clients, and examine and present evidence at trial.  Our litigation team has dealt with all kinds of defamation matters in courts across Ontario and has significant experience at both the trial and appellate levels. Call us at 416-777-0100 or contact us online for a consultation.

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Corporate & Commercial Law Defamation And Social Media Litigation

Anti-SLAPP Lawsuit Update

In an earlier post, we discussed Anti-SLAPP motions in relation to an ongoing matter between Subway and the CBC. In that case, the CBC had conducted an investigation into Subway and the food the company marketed as 100% chicken. Following an 8-month investigation, the CBC concluded that the food only contained 50% chicken meat, while the remainder consisted of what appeared to be soy product. The CBC aired the results of its investigation, and Subway publically denied the claim. Further, the fast-food chain launched a $210 million dollar defamation lawsuit against the broadcaster. Earlier this year, the CBC filed what is known as an ‘Anti-SLAPP’ motion to have the suit dismissed under s. 137.1 (3) of the Courts of Justice Act (the ‘Act’). This section of the Act is aimed at restricting lawsuits strategically filed to protect the plaintiff from criticism on matters of public interest, otherwise known as Strategic Lawsuits Against Public Participation.

On November 22, the Ontario Superior Court of Justice released a decision in which it allowed the CBC’s motion and dismissed Subway’s lawsuit.

The Criteria Needed to Establish SLAPP Litigation

As discussed in the previous post, in order to be successful in an anti-SLAPP motion, the motioning party must demonstrate that the lawsuit surrounds a form of “expression” which was made in relation to a “matter of public interest”.

Public Interest

While Subway argued that the public would have little interest in specifics relating to the DNA breakdown of various ingredients and would be more concerned with a “consumer-oriented assessment of chicken or animal protein content”, the court disagreed. While many people may not regularly check the scientific breakdown of the food that they ingest, the court found that:

There are few things in society of more acute interest to the public than what they eat. To the extent that Subway’s products are consumed by a sizable portion of the public, the public interest in their composition is not difficult to discern and is established on the evidence.

Further, the court emphasized the importance of protecting the industry of investigative journalism as a whole and noted that there was a public interest in protecting those involved in the profession from an undue burden relating to litigation stemming from their work.

Substantial Merit

Once the CBC had established the public interest, the onus shifted to Subway to demonstrate that its claim against the CBC had substantial merit. Given that Subway was an international fast-food chain known almost solely for being a purveyor of food, the CBC’s claims were not insignificant. They would be likely to have a major impact on Subway’s reputation on a national and potentially global scale.

Subway was not required to demonstrate that it had a winning case to satisfy this criterion. It simply had to prove that it had “more than a mere chance of winning”. Subway was successful in this regard. It provided evidence demonstrating the reach of the CBC’s report, and also obtained its own expert evidence relating to the makeup of its chicken to counter the investigation. In the evidence provided by the fast-food chain, the laboratory results showed significantly less plant protein in the chicken than what was reported by the CBC (1% to the CBC’s 40% or more).

Responsible Communication

With Subway establishing substantial merit, the CBC then turned to a defence of its broadcast under the banner of ‘responsible communication’. To do so effectively, the CBC had to satisfy a two-part test:

  1. The report must have been in the public interests; and
  2. The CBC must have been reasonably diligent in establishing the validity of the claims in the report.

The report had already been deemed by the court to be a matter of public interest, so the CBC moved on to part two of the test. To satisfy this arm of the test, the CBC explained that it had retained Trent University to complete the DNA tests, and that the chicken had repeatedly come back showing significant plant protein in its makeup. The CBC then retained another independent tester to assess Trent University’s results. Lastly, the CBC provided Subway with the results and gave the company ample time to respond before airing the results publicly. In a follow-up piece, the CBC included Subway’s strong disagreement with the CBC’s findings.

The court found that while there may have been issues with Trent University’s methodology, the CBC itself had exercised due diligence in obtaining the information used in its report.

The Balance of Harm

The final determination in deciding whether to dismiss a potential SLAPP lawsuit is to assess the balance of harm between the parties. In the case at hand, the CBC positioned itself providing a service: to inform the public about matters of significant importance; in this case, consumer goods, and truth in labelling items meant for public consumption. The court found that while the investigation may have a broad impact on Subway as an organization, any impact in that regard was outweighed by the public interest in freedom of the press, and the right of the public to know the truth about items meant for their consumption. As a result, Subway’s case against the CBC was dismissed.

It is important to note that Subway has an ongoing action against Trent University, the lab that provided the CBC with the initial results pertaining to the genetic makeup of the chicken. This action was not dismissed under the Act.

At Baker & Company, we are both everyday trusted advisors and problem solvers. Our team of skilled and experienced litigation lawyers are cherry-picked for their ability to analyze cases, counsel clients, and examine and present evidence at trial.  Our litigation team has dealt with all kinds of litigation matters in courts across Ontario and has significant experience at both the trial and appellate levels. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Defamation And Social Media Litigation

Anti-SLAPP Motions and Defamation Litigation

In 2017, the CBC aired the results of an investigation conducted by journalists that examined whether some chicken products marketed and sold by Subway, an international fast food franchise, may not have been comprised of 100% chicken meat. The CBC’s conclusion, following an 8-month investigation, was that some products the chain had labelled as chicken contained only approximately 50% chicken DNA (much of the remainder appeared to be comprised of soy product). After the piece aired, Subway publicly disputed the claim and filed a $210 million defamation lawsuit against the broadcaster. The CBC, in the statement of defence, claimed that the chain had been given the opportunity to respond to the claims prior to the piece going public, and failed to do so. They also claimed that the restaurant chain had failed to provide evidence to contradict the results of their independent investigation.

In June of this year, the CBC filed a motion to have the suit dismissed under s. 137.1 (3) of the Courts of Justice Act (the ‘Act’), which is aimed at restricting lawsuits strategically filed to protect the plaintiff from criticism on matters of public interest.

What is Anti-SLAPP legislation?

The Protection of Public Participation Act (the ‘PPPA’) which came into force in Ontario in 2015, aims to curb lawsuits launched specifically to silence public discourse on matters important to the public interest. The passing of the statute amended several pieces of existing legislation, primarily through the incorporation of ss. 137.1-137.5 of the Act, which created a new pre-trial procedure allowing defendants to move for an order dismissing a claim arising out of a defendant’s expressions on matters of public interest. The stated purpose of the section is as follows:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

The Test for Identifying a SLAPP Lawsuit

A 2017 decision of the Ontario Superior Court of Justice helpfully set out a clarification of the test for courts considering a motion under s. 137.1(3) of the Act. In deciding on the motion, brought by a Toronto-area school teacher facing a defamation lawsuit over social media posts she had made speculating on the toxic effects of changes to regulations surrounding a local landfill site, the judge found that the original onus of proof under a SLAPP motion falls to the applicant. The applicant must first establish that the suit surrounds a form of “expression” which was made in relation to a “matter of public interest”.

If an applicant can establish both elements described above, the motion must be granted, unless the respondent can establish the criteria set out in s. 137.1(4) of the Act:

A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

  • there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and 

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The responding party must satisfy the court that each of the elements above is present in order to avoid a dismissal. In the case at hand, the judge concluded that the applicant had satisfied her part and that the respondents had failed to satisfy theirs. Specifically, they failed to establish the first element, demonstrating that the proceeding had ‘substantial merit’. The corporation had demanded a retraction and apology from the applicant prior to the lawsuit, and she had fully complied, retracting her comments and posting an apology viewable by everyone who had seen her original comments. Following that, the court reasoned, there was no further benefit to be gained via the proceeding as no further harm existed. As a result, the case was dismissed.

Corporations and Individuals Should Review Proposed Defamation Suits with Experienced Counsel

Anti-SLAPP legislation aims not only to put a stop to existing litigation brought by corporations or individuals with considerable resources in order to silence discourse on matters of public interest but also to prevent the courts from being used to intimidate others from potentially speaking up. Defamation lawsuits can have a chilling effect on whistleblowers who fear being targeted and facing severe financial repercussions, and litigants have used this to their advantage in the past. This legislation aims to protect the freedom of expression of those seeking to shed light on matters in which the public has a vested interest. To avoid expending unnecessary time and expense, parties seeking to file a lawsuit to counter what may be perceived as libel or slander are strongly advised to discuss potential pitfalls with respect to anti-SLAPP legislation with experienced litigation lawyers before proceeding.

As for the Subway case, the CBC’s motion to dismiss is set to be heard on September 24, 2019. We will continue to watch this case and will update as appropriate.

At Baker & Company, we are both everyday trusted advisors and problem solvers. Our team of skilled and experienced litigation lawyers are cherry-picked for their ability to analyze cases, counsel clients, and examine and present evidence at trial.  Our litigation team has dealt with all kinds of litigation matters in courts across Ontario and has significant experience at both the trial and appellate levels. Call us at 416-777-0100 or contact us online for a consultation.