As I’ve written previously, the intersection of defamation and social media remains a minefield and social media users are well-advised to treat social media posts no differently from any other form of publication; that is, to assume that defamatory social media posts can lead to being sued. Posting on social media grants little or no special immunities or exemptions from the ordinary law of defamation and, if anything, the potential for substantial damage awards following social media posts may be higher than in other, more traditional forms of printed defamation.
This risk was put into sharp focus in the recent decision of Hee Creations Group Ltd. v Chow, 2018 BCSC 260 (CanLII) in which the plaintiff alleged that it had been defamed in over a dozen social media posts published by the defendants. The posts related to the defendants’ discontent related to wedding services which the plaintiff provided. The plaintiff sought damages for loss of its wedding services business which it said resulted from the posts and the defendants defended themselves on the basis that their comments were justified or constituted fair comment. Ultimately the case focused on only one defendant.
Issues began with the pre-wedding photographs. The defendant maintained that she was dissatisfied with the photographs due to poor quality, quantity and repetition. The court described the defendant’s dissatisfaction as “unrelenting”. The defendant stopped payment on the balance of the wedding services contract as a result. The defendant purported to impose the condition that another photographer of their choice would provide an opinion on whether the quality of the photographs were satisfactory before full payment would be made, a stipulation which was rejected by the plaintiff.
The plaintiff advised that if the contract price was not paid in full, there would be no finalization of the pre-wedding and wedding photographs and that it would not be responsible for storing the photographs. The wedding photographs were taken despite the non-payment of the full contract price.
The plaintiff offered to terminate the contract and refund a portion of the funds already paid on the basis that the contract would be terminated (with the implication being that there would be no retouching or further obligation), which offer was rejected. The defendants commenced a Small Claims action alleging breach of contract and the plaintiff counterclaimed for the unpaid balance of the contract price.
Around the same time that the Small Claims proceeding was commenced, the defendants took to various English and Chinese social media platforms to publish a number of posts about the plaintiff which resulted in the latter being sued for defamation. The posts were lengthy, inaccurate, disparaging and made a number of very serious allegations including that the plaintiff:
- engaged in unfair practices;
- took inferior quality photographs;
- made threats;
- violated fair practices;
- was involved in hostile business operations, extortion and illegal business tactics;
- deliberately breached contracts;
- engaged in bait and switch tactics;
- lied about photography experience;
- lied in front of the court in the Small Claims proceeding;
- doctored evidence in the Small Claims proceeding;
- scammed new immigrants and students; and
- various other nefarious acts and improper or illegal business practices.
The defendants also sent their complaints to local media in an attempt to have them investigate the plaintiff.
Plaintiff’s counsel made multiple demands that the defamatory posts be removed and that an apology be published, but the defendants rejected these demands. It was only after judgment was granted against the defendants in the Small Claims action that an apology was extended and made public on social media.
The court found the defendants to not be credible witnesses; with one being found to engage in calculated and well-rehearsed precision, to feign innocence and that it was not credible for the defamatory publications to be considered impulsive.
The court found that the social media posts were plainly defamatory and referred explicitly to the plaintiff’s. Evidence demonstrated that the posts were republished, were accessed thousands of times and produced dozens of replies by several different people. The court rejected that the impugned parts of the posts were true or constituted fair comment and, even if it was wrong in that analysis, that the posts were malicious.
Having made those findings, the court had to assess general damages, which are intended to compensate the plaintiff for the loss to its reputation as a result of the defamation. Generally, this is an assessment of the loss of good-will. The court pointed out that, within a particular cultural community, reputational damage can be exasperated.
The plaintiff’s business slowed considerably after the defamatory posts which the court found to be connected to the posts. Accordingly, the court awarded $75,000 in damages for loss of goodwill, loss of business reputation and economic losses. The court awarded an additional $15,000 in aggravated damages based on there being a lack of an apology and the defendants advancing and maintaining legal defences of justification that were bound to fail. The malicious nature of the publications attracted punitive damages in the amount of $25,000.
Hee Creations Group Ltd. v Chow is a reminder of both the power and risks of social media. Posts on social media have the possibility to be disseminated to a wide audience in a very short time and can have both immediate and lasting effects on the subjects of posts. Social media users are well cautioned to appreciate the difference between a fair and legally justified expression of opinion and reflection of experiences and when posts cross into the defamatory realm of maliciousness and/or untruthfulness. Substantial damage can be caused by defamatory posts for which the poster may be held responsible and have the capacity to have substantially negative effects on both the subject of the post and the poster.
By Jeremy Burgess, Pushor Mitchell LLP
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