I’ve previously written on defamation within the context of social media and airing grievances about services on social media, and the recent decision of Rook v. Halcrow, 2019 BCSC 2253 continues to underscore that social media posts are public domain and that serious censure can follow defamatory social media posts. It appears that courts are perhaps increasingly willing to award very serious damages for particularly malicious social media posts.
In Rook v. Halcrow, the plaintiff and defendant had an on and off again relationship for approximately a year or so. After their relationship ended, social media posts began cropping up which defamed the plaintiff. The posts made allegations defaming the plaintiff’s personal and professional character, put his relatively high-profile career at risk and lasted for a year.
While the defendant denied making the posts, she offered no evidence to support her position and the court found that the posts were published by the defendant. In particular, the posts were found to have originated from the defendant’s IP address, were consistent with texts in which she took ownership of the posts, were consistent with the phraseology used by the defendant in her texts with the plaintiff and no evidence of any other person having reason to make the posts or with the personal knowledge contained in the posts was suggested.
In analyzing the posts, the court held at para. 22 (citing Vander Zalm v. Times Publishers, a Division of F.P. Publications (Western) Ltd. (1980), 18 B.C.L.R. 210 (C.A.)):
A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society.
The court found that both the literal and inferential meaning of the posts was defamatory. As such, each post provided the plaintiff with a cause of action or basis upon which to sue. The court did not require detailed proof regarding how much the posts had been viewed as it could be reasonably inferred from the nature of the posts and the number of comments and viewing that they have received wide viewing.
The court reviewed that general damages for defamation can serve the following three functions:
- to act as a consolation to the plaintiff for the distress he or she suffers;
- to repair the harm to his or her reputation; and
- as a vindication of his or her personal or business reputation.
The court also reviewed that where malice can be proven, additional damages can result from where the defendant’s conduct has been insulting, high-handed, spiteful, malicious or oppressive which increases the plaintiff’s mental distress. Express malice was held by the court to be where the defamatory words were made:
- knowing them to be false; or
- with reckless indifference as to their truth; or
- for the dominant purpose of injuring the plaintiff out of spite or animosity; or
- for some other dominant purpose which is improper or indirect.
Malice was found by the court given the email and text exchanges that demonstrated that the posts were authored out of spite and animosity and for the purposes of hurting the plaintiff.
After considering recent cases on damages submitted by the plaintiff, the court awarded $175,00 in general damages, $25,000 in aggravated damages and $29,870 USD for the costs that the plaintiff incurred in removing the offending materials.
The decision in Rook v. Halcrow is not without some issues. Arguably the court did not go into a thorough analysis of whether the posts were true, an important part of any analysis of potentially defamatory statements. Similarly, it is arguable that the court’s quantification of damages was not as well-developed as it could have been.
Those issues aside, Rook v. Halcrow is demonstrative that substantial damages can be awarded even in the case of harm to an individual’s reputation as a result of defamatory social media posts. The more relentless and malicious the campaign, the more likely substantial damages may follow. It is strongly recommended that anyone asked to remove their potentially defamatory social media posts or who finds themselves the victim of potentially defamatory social media posts seeks appropriate legal advice.
By Jeremy Burgess, Pushor Mitchell LLP
- New qualifying disbursement rules add directed donations anti-avoidance provisions complicate charity regulation - February 6, 2023
- Ontario Court decision is first donor advised fund case and provides some certainty about DAFs - January 31, 2023
- Corporations Canada and new transparency about federal non-profit corporations under the CNCA and new fees for certain documents - December 21, 2022