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Say anything you want online…NOT by Zachary Pringle, Scarfone Hawkins Law

Say anything you want online…NOT by Zachary Pringle, Scarfone Hawkins Law

Do you remember that time when you fought with your neighbour about their dog’s unscrupulous meandering through your back yard? Then, in a totally uncharacteristic fit of rage, logged on to Facebook, wildly mashing your keyboard until a just-barely coherent sentence formed, berating your neighbour and their (as you so gently described) mutt? No doubt that as soon as you hit the enter key to share your neighbourly grievance with your Facebook friends, all that pent-up anger dissolved away like Melisandre after The Long Night (sorry – I’m still not over the final season of Game of Thrones).

Given the number of calls my firm has been getting about similar complaints – no, not unscrupulous meandering mutts, but about personal attacks made on social media – it seems like the use of Facebook, and to a certain extent, Twitter, YouTube, Instagram, and similar online platforms are frequently being used to air dirty laundry. Aside from these online posts encroaching on icky-oversharing (not a legal term), they often toe the line into what is called “defamation or “libel (those are legal terms).

Basically, defamation is, generally speaking, an untrue statement about someone else that is harmful to their reputation. Libel, or in this case, cyber-libel, is a defamatory statement in written format. So, depending on what you wrote about your neighbour and their pooch on Facebook, you could be facing a possible civil claim for defamation. While my characterization of defamation is overly simplistic, Ontario’s highest Court, the Court of Appeal for Ontario, has described defamation in a bit more detail:

“…words [which] might tend to expose [the person] to hatred, contempt, ridicule or whether the [words] lower the [person] in the estimation of reasonable persons who have common sense and who are reasonably thoughtful and well-informed but who do not have an overly fragile sensibility.”

Whether your online rant will be legally considered defamatory, like the answer to all legal questions, depends. It depends on a number of factors, some of which include: did you specifically name-drop your neighbour? Was your statement untrue, made in bad faith, or malicious? Would a reasonable person think less of your neighbour after reading your posts? These are just some of the factors the Court will look at to determine if you defamed your neighbour.

So, what happens if the Court concludes your online post was defamatory? Well, nothing good. Once a statement is considered defamatory, your neighbour is automatically considered to have suffered a legal “injury” and is entitled to compensation straight from your pocket. How much? Again, it depends. Where was it posted? How many people saw the post?

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The problem is that now, in the age of the internet, posts online are often permanent. Even if the defamatory post is eventually deleted, it’s entirely possible – and likely – that the post was screen-grabbed, shared, cached, or all three. By that point, the defamation could have been seen by hundreds or thousands of people, thereby increasing the injury to your neighbour, and decreasing the numbers in your bank account.

This is all to say that cyber-libel is taken seriously by the Courts. The next time you need to rant about your neighbour, do it in your offline diary.

Zachary Pringle is a lawyer with Brown Scarfone LLP in Hamilton. Part of his practice deals with defamation and libel law.

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