A Guide to Internet Defamation for Businesses and Professionals
Internet defamation can be disastrous for businesses and professionals. A viral social media post or bad review that took minutes to write is capable of destroying years of hard-earned goodwill. This article offers a brief guide to internet defamation and the available legal options to respond and seek redress.
Defamation – A Primer
Defamation refers to a false statement of fact that harms another’s reputation. Just like individuals, businesses are endowed with reputations that can be damaged and are entitled to protection under defamation law. To proceed with a defamation action, a claimant must provide facts demonstrating that the statement:
- is objectively harmful (in that it would tend to lower the reputation of the claimant to a reasonable audience – proof of actual harm is not necessary);
- was communicated publicly; and
- was in reference to the claimant.
On establishing these elements, a court will presume the statement is false and the burden shifts to the author to establish a defence. In the context of online reviews and social media posts, two of the principal defences are:
- Truth – A true statement of fact cannot be defamatory; and
- Fair Comment – A statement of opinion that is based on fact is not defamatory, with a few further caveats: the opinion must be honestly held by the author (meaning it was formed based on actual events), the opinion must be recognizable as opinion (rather than as fact), and the opinion must be expressed without an ulterior purpose (i.e., malice).
For businesses and professionals, disparaging remarks regarding competency, ethics, illegal conduct and knowledge will be presumed to be defamatory. A few examples of statements that have been found defamatory include: a contractor double billing, the inferior quality of a business’ products and a business’ insolvency.
Given the ubiquity and massive reach of online content, internet defamation gives rise to unique legal considerations:
- Jurisdiction – As online posts can be published in foreign jurisdictions and by foreign publishers, internet defamation necessarily gives rise to jurisdictional issues. To sue someone for defamation in a Canadian jurisdiction, the online post must have a real and substantial connection to the jurisdiction. This does not mean that the publisher must be based in Canada, but, at the least, that the impugned content was capable of reaching audiences and harming the reputation of the claimant in that Canadian jurisdiction.
- Limitation Periods – In Canada, the limitation period for a defamation claim is renewed each time an offending statement is republished or publicly read. In the context of online defamation, where defamatory content can be easily republished and made accessible forever, a defamation claim can theoretically have an endless limitation period.
- Hyperlinks – Simply referencing or providing a link to defamatory content will not be defamatory unless the reference to the hyperlink can be interpreted as being an endorsement or encouragement of the defamatory content.
- Anonymity – Online anonymity and usernames add an additional hurdle to achieving redress for defamation. However, there are multiple ways to determine an author’s identity. An action can be started against a “John Doe” defendant. This can be followed by a court order requiring the website to disclose the personal information of the anonymous author. The IP address linked to the poster can be tracked, creating an important evidentiary link. Last, courts can draw inferences from the content of the post to determine the identity of the suspected author.
- ISPs and Websites as Intermediaries – To be liable for defamation, an ISP or website must be more than a ‘passive instrument’ in its publication. This protects search engines, as they rely on algorithms to generate the results posted. On the other hand, websites that invite user posts and comments may be held liable if they are found to have been aware of the defamatory content.
As the potential audience for defamatory content online is enormous, the potential awards of damages for victims of internet defamation can also be considerably larger. For businesses and professionals, the following categories of damages are available:
- General Damages are intended to compensate the victim for the resulting harm caused by the loss of goodwill and reputation. This could include the loss of customers or clients, a loss in share price, and the loss in the value of goodwill as a business asset. Importantly, general damages for defamation are available to the victim without having to prove actual economic loss, although the size of the damages may largely depend on providing such evidence.
- Special Damages refer to the measurable losses caused by the defamatory statement. For example: the cost to hire a PR team or the resultant loss of a contract.
- Aggravated Damages provide compensation for hurt feelings and mental distress. For this reason, aggravated damages are unavailable to corporations (they can’t have their feelings hurt), but are available to professionals whose reputations and integrity have been tarnished or attacked.
- Punitive Damages are intended to punish the author when their conduct is particularly malicious, and will only be awarded when the combined general and aggravated damages are insufficient to serve as a deterrent or punishment for the author’s conduct.
Injunctions and Summary Judgment
Defamation actions necessarily raise questions on restrictions to freedom of speech. Accordingly, courts will only grant injunctions to have content removed in exceptional circumstances. An injunction may be a remedy where the victim of the allegedly defamatory statement would suffer irreparable harm if an injunction were not granted. For businesses and professionals, this could mean a substantial loss of business, clientele, or goodwill that could not adequately be compensated by a future award of damages.
Summary trials, a trial by written evidence only, can provide a more cost-effective and faster path to obtaining judgment in defamation. Summary trials will be available where the matter is not overly complex and credibility is not seriously at issue.
The first steps taken in response to internet defamation can be the most crucial. Below are some strategic considerations to keep in mind in deciding how to proceed:
- Keep detailed records of the defamatory content and its impact. Immediately take screenshots of the posts on all websites and platforms where it has been posted, reposted, or shared, as well as comments or responses to the content. Written records should also be kept of all customer or client inquiries regarding the content.
- A carefully worded demand letter to the author is an important first that may encourage the author to take the content down without drawing further public attention.
- Litigation can provide important redress and may push the offending publisher to remove the defamatory post where other measures fail. Keep in mind that there is no immediacy to legal action, and taking aggressive first steps may serve to draw more attention to the content than it would ordinarily have received.