One need only turn on Netflix to witness a broad social discussion which is currently underway regarding privacy rights, internet-based media, and defamation. Most recently, for example, Prince Harry and Meghan Markle released a docuseries (Harry & Meghan) where they explore how online hatred can fuel an entire network to disseminate false or highly private information, taking a serious mental toll on the subject and creating a real risk of physical harm.
The Law Commission of Ontario wrote in their report of Defamation Law in the Internet Age: Final Report:
“With the internet, individuals may, with the press of a button, publish outrageous lies about others; lies that may involve very intimate aspects of their lives. …
…internet defamers may have an intent to harm the complainant that is not typical in a classic media defamation matter. And there are usually no internal checks and balances preceding publication that would promote truth-telling and lend the publication credibility. Rather, online personal attacks may be as casual, abrupt and ill-considered as an insult preceding a street brawl.”[1]
The potential fallout from this type of cyberbullying can be dire for the victims and cause serious and sometimes irreparable psychological harm.
In Canada, the act of making a communication about an individual, to someone else, which would tend to harm the reputation of that individual, is considered defamation. Both libel (written) and slander (spoken) are considered forms of defamation.
As defamation is centered on harm to reputation, the importance of whether something is “published”, rather than privately expressed, is a core consideration.
Traditionally, the idea of privately and publicly shared information was more easily differentiated. Currently, however, even where information is “privately” shared on social media platforms, such as TikTok, Instagram, and Facebook, the speed and flexibility with which information can virally circulate challenges that traditional conception.
Unfortunately, the jurisprudence on defamation is better suited to address town-square flyers and printed letters to the editor than it is to address the internet-age. However, a new case (and a new tort) offers hope for those who are victims of private-message-based cyberbullying.
The Traditional Approach to Establishing Liability for Defamatory Statements
In the case of defamation, we continue to apply the traditional understanding of “publishing” to social media and other online platforms. Plaintiffs are required to answer questions such as: Was the authoring account public? How many people could access the source post? How many followers did the author have?
This is mostly due to the long-developed jurisprudence on defamation which long predates social media platforms. In Ontario, a statement will be defamatory in law where it tends to lower the reputation of the plaintiff in their community in the estimation of “reasonable” persons and where that statement was made to a third party. Proof of publication is therefore a foundational element in an action for defamation and typically considers whether the source content had been made available to the public. “Publication” in and of itself means to make something generally known or publicly available. The focus on the harm to one’s reputation within a community reiterates that need for a public platform.
This approach was confirmed by Supreme Court of Canada in Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269, where the majority chose to see hyperlinks as references, fundamentally different from “publication”. Applied contemporaneously, this decision fails to grapple with the potential of information “going viral” on the modern internet.
This shortcoming was predicted by Deschamps J in the minority decision:
“Excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet. This blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.”
Deschamps J’s approach suggested the issue was not of “publication”, as it certainly was published, but one of intent and liability of a “re-poster.”
Certainly, in many situations, “re-posters” are innocent disseminators and their actions do not attract liability. However, can the original poster be liable for the innocent dissemination of others? When does private communication attract liability where intent to distribute exists or subsequent publication is reasonably foreseeable? These are issues that the law of defamation continues to struggle with.
A New Decision (and Tort) Offers Hope
However, in a recent Ontario decision, Justice Emery demonstrates the important role that the new tort of portraying another person in a ‘false light’ plays in addressing this shortfall. This new tort allows the courts to acknowledge that the original posting at issue need not have been published in a traditionally public sense in order to cause victims widespread harm online.
In Kaur v Virk, 2022 ONSC 6697, the plaintiff started a claim against the defendant for defamation and of ‘false light’. The case stemmed from a cyberbullying campaign launched by Ms. Virk against Ms. Kaur, in which videos were being circulated on Whatsapp and TikTok, making false statements about Ms. Kaur, sharing her private phone number, and encouraging viewers to contact Ms. Kaur to “teach her a lesson”.
According to Ms. Kaur, these videos were rapidly viewed by the closely-knit Indian community in Brampton of which she is a part. As a result of the circulating videos, Ms. Kaur was harassed by hundreds of people through private messaging, many of whom were from all over the world, and many she had never met. The harassment continued daily for four to five months.
However, when conducting the analysis for defamation, Justice Emery explained that the plaintiff failed to prove that WhatsApp content would be publicly accessible or could subsequently be shared on TikTok.
“[33] No expert evidence was given about the operation or outward facing dimensions to WhatsApp on which Ms. Virk posted the first video in May 2021 to her own account. I have no way of knowing if Ms. Virk “published” the video by taking this step, or if posting it was tantamount to filing an entry into an electronic diary or sharing thoughts with a chosen confidant. The court cannot conduct its own research outside of the evidence given on a hearing to determine facts. It is for this reason I have not “googled” how WhatsApp, TikTok or Instagram work. Nor have I visited their websites to read if they are accessible by others, and if so, how a member’s user circle or anyone searching the internet may find them.
[34] In the absence of evidence on the nature of these platforms and the access available to them by others, I find that Ms. Kaur has not proven that Ms. Virk “published” this video.”
Justice Emery’s decision reminds us that, although social media has become so highly integrated into general public life, in proving defamation, the evidence must still be put forward demonstrating that the public had access and did access the author’s source post.
Interestingly, however, in the emerging tort of ‘false light’, Justice Emery takes a different approach to “publishing”.
The tort of portraying another person in a ‘false light’ was first introduced into Ontario jurisprudence by Justice Kristjanson in Yenovkian v. Gulian, 2019 ONSC 7279. The tort of false light is derived from one of the four aspects of tortious invasion of privacy.
The elements for the tort of false light are set out by Justice Kristjanson as:
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.
Justice Kristjanson explained that while the publicity giving rising to the tort will often be defamatory, defamation is not required to establish liability.
Unlike defamation, as remarked by Justice Emery in Kaur, the tort of ‘false light’ does not require the plaintiff to meet the strict test of whether that person’s reputation would be lowered in the eyes of the community. The relatively blank slate of jurisprudence and inapplicability of this test allowed Justice Emery more flexibility in her analysis of “publicity” than is traditionally afforded in defamation cases.
In her assessment of the WhatsApp video posted to Ms. Virk’s own account, Justice Emery posited:
[46] It was reasonably foreseeable by Ms. Virk that any rumor or falsehood posted on a private account such as her WhatsApp account could be copied by another person for posting on a platform or app with an outward facing dimension, if not by herself.
In this analysis, the Plaintiff’s claim is not defeated by the fact that the posting was not proven to be made on an outward facing platform or application, as it was reasonably foreseeable that the content could be copied from a private account to a more publicly accessible space.
[46] … The re-posted entry could conceivably make the rounds on the internet to provide the public dimension required to prove that the posting was made publicly.
Justice Emery addresses and understands the virality with which “privately” distributed information can be shared on the internet, and that this has the potential to provide the public dimension required of the tort.
[46] … While the posting to WhatsApp was not “publishing” in the sense of that term to prove defamation, the posting at source, combined with the reasonable foreseeability that it could be copied to another forum that could publicly place Ms. Kaur in a false light, is sufficient to entitle Ms. Kaur to judgment.
From the above remark, one can draw two conclusions: (1) the idea of “publishing” is different in the case of defamation than in the tort of false light, and (2) in the case of false light, posting in a private online forum, where combined with the reasonable foreseeability that it could be copied to another forum, can be sufficient to attract a finding of “publicity”.
This decision is an important acknowledgment of the unwieldiness of online communication and that private messages are not immune to broad dissemination. If anything, private messaging can quickly “go viral” and develop into a far-reaching network that makes information publicly available to a community. Whether the source post is placed on an outward-facing or public forum originally or is disseminated virally through private messages, or a combination of the two, the falsity is sufficiently publicized for the purpose of false light.
With this more modern understanding of “publishing”, the tort of false light offers a new and adaptable method of addressing online public falsities of an individual.
Are you experiencing issues with online harassment or defamation? The members of Soloway Wright’s Litigation Team are here to answer your questions and address your concerns.
[1] Law Commission of Ontario, Defamation Law in the Internet Age: Final Report (Toronto: March 2020), page 13.
