Law Times

Law Times • June 6, 2011 FOCUS PAGE 11 Ontario's courts address online defamation Several recent decisions shed light for lawyers on difficult issues BY DARYL-LYNN CARLSON For Law Times F or many years, there had been questions around the gap between pro- tections for expression under Canada's Charter of Rights and Freedoms and issues related to posting defamatory comments on the Internet. As a result, the courts have been wrestling with defama- tion cases in terms of how far they should go to strike a bal- ance between upholding free speech and dealing with the consequences of defamatory remarks posted online. But there have been a few lawsuits during the last two years that indicate Ontario courts have strived to achieve a balance between free speech and potential abuses. For some lawyers, it's a positive develop- ment that they believe will be of assistance in determining whether a client has a good case for a defamation suit. "Th ere have been a lot of cases recently regarding online defamation and that indicates the courts have been receptive," says Rob Hyndman of Hynd- man Law Professional Corp. in Toronto. "Th e main objec- tive for the courts is to be able to protect the right of freedom of expression in a democratic society while also making sure that right is not abused." Hyndman suggests the turning point for Ontario's courts on libel law in general may have come in 2008 with the Court of Appeal's decision in Grant v. Torstar Corp. In that case, the appeal court overturned a jury verdict against the Toronto Star that had awarded nearly $1.5 mil- lion in damages to a northern Ontario businessman and his private corporation for libel. Th e plaintiff , Peter Grant, sued the newspaper over an ar- ticle that mentioned objections from his neighbours to his plan to build a private golf course development on Crown land. Th en in 2009, the Supreme Court of Canada ruled that the law of defamation must ac- commodate the rights of a par- ty to speak on matters of public interest as long as it exercises a certain level of responsibility in verifying the potentially li- bellous facts. According to Hyndman, the case set a precedent in pro- viding for a new defence for libel. "For responsible media, even if there are inaccurate parts of the story, you have a defence in terms of making an eff ort to check all the facts," he says. Gil Zvulony of Zvulony & Co. Professional Corp. in To- ronto agrees that the law has come a long way during the past several years in clarifying where the courts stand on al- legations of defamation on the Internet. "In the past, defa- mation was really about rich people suing newspapers. But recently, I would say that it has exploded and is really a com- mon occurrence because today, everyone who has a web site is a publisher," he says. Zvulony notes that his cli- ents for the most part are "ev- eryday people" who don't have a lot of money and couldn't af- ford to face a lawsuit over a de- famatory comment published online. Zvulony was counsel for the defence in the matter of Es- guerra v. Liland Insurance Inc., a case that never moved for- ward after the court deemed the statement of claim to be inadequate. "Th e lesson is really for coun- sel in that when you're drafting a statement of claim, you have to include all the details relating to CITE THE MOST SIGNIFICANT BAIL DECISIONS RELEVANT TO YOUR CASE THE LAW OF BAIL IN CANADA, 3RD EDITION THE HONOURABLE MR. JUSTICE GARY T. TROTTER How do you sort through thousands of bail decisions to find the case law that is most applicable to your bail hearings? 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ORDER # 982714-61982 $227 1 volume looseleaf supplemented book Supplements invoiced separately 1-2 supplements per year 978-0-7798-2714-5 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. heard a lot of cases over the last while, and their approach has been very balanced," he says. As a result, he says that when he's representing clients in any aspect of their business on the Internet, he'll explain the lim- its on freedom of expression in the context of recent case law delivered by the courts in On- tario. "Th e main objective is to advise our clients that while they have the right to freedom of expression under the Char- ter, they also have limitations, and for some it might seem logical but it's important they know what they can publish," he says. Ultimately, it's mostly dis- Defamation cases have 'exploded and is really a common occur- rence,' says Gil Zvulony. the damages incurred," he says. Another case, Barrick Gold Corp. v. Lopehandia, went to the Ontario Court of Appeal. It decided in favour of the plaintiff for a sum of $75,000 in damag- es based on the principle that de- famatory statements published by the defendant were especially damaging to the plaintiff 's repu- tation in the online marketplace and otherwise. Javad Heydary of Heydary Hamilton PC acknowledges that the courts have evolved in recent years in their approach to Inter- net-related defamation lawsuits. "Th e Ontario courts have cussion boards, blogs, and oth- er web sites such as Facebook and Twitter that are highly volatile spots for defamatory postings. Nevertheless, if the subject of a negative posting contacts a lawyer, there may be no grounds for a lawsuit if the re- mark wasn't overly damaging and it's removed in a timely manner, Heydary adds. 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• Return To Practice
• SCC Expose?
• Focus On Internet/E-Commerce Law