Tuesday, January 11, 2011

Internet Defamation on the Rise

People think of the internet as an inherently anonymous venue, where they can voice their concerns about issues without attaching their real names to it, and therefore without recourse.

There are ways of tracing internet usage, however, and it's becoming increasingly common to see legal proceedings based on ill-thought-out internet posts. Sometimes a person posts something inherently actionable or criminal, like defamation or threats. Other times a person makes posts which amount to admissions of wrongdoing - see this case, in which a 19-year-old from Vaughan was charged after bragging online about having driving 140kph in a 40 zone in his M5S, under the username "bmw550ifreak". Facebook has also become an interesting issue in some personal injury actions: A person alleges that his injuries have severely impaired his ability to lead a normal life, that he's always miserable, can't leave the house, and never does anything physical anymore...then their Facebook page gets demanded by the insurance company, which reveals a somewhat different picture, between all the status updates and dialogue with friends discussing all his wild adventures.

But what's really taking off is that disgruntled people use the internet as a source of venting. Somebody wronged you, and you see the internet as your way of telling the world about it. Think twice.

Defamation law continues to develop, and is a highly nuanced area of the law, but I think that a good simple rule to follow is this: If you can't say anything nice, or at least provably true, don't say anything at all.

In one recent decision, released last week, a Pelham lawyer sued a former client for libel. This one wasn't limited to the internet - following on the heels of losing his assessment of the lawyer's bill, the client even took out newspaper ads to disseminate disparaging information about the lawyer. The allegations were quite serious, alleging multiple criminal convictions and Law Society discipline including sexual misconduct.

There are a lot of possible defences in defamation actions. When the lawyer sued, the client led the defence of "justification" - basically, he claimed to be justified in saying these things because, he argued, they were true. And they weren't far off of the truth - in fact, the lawyer did have a criminal record, arising from a singular criminal conviction for criminal harassment in 2003. He also had a disciplinary record with the Law Society, one following from the conviction, and two others in 1996 and 2006.

However, there were two major problems with the justification defence: Firstly, the publications alleged "more than one" criminal conviction. There was only one. Secondly, the publications wrongly suggested that the information was current, despite the fact that they were being published in 2008/2009 - essentially, the allegation seemed to be that the lawyer was, at the time of publication of the ads, practicing law despite being on criminal probation.

"Public interest" defences were also led, but failed because a prerequisite for these involves the absence of malice, and it was pretty clear on the facts that the client had ulterior motives for making the posts.

The lawyer won the case, and a significant award of damages was made.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

No comments:

Post a Comment