Francine Derby | Defamation in the digital age

Persons no longer have to rely only on newspaper columns or a radio show to have a voice and to publicise an opinion. Blogs, websites and social media pages have given the ordinary citizen a platform.

However, there are dangers in using these platforms too recklessly; for example, the risk of being accused of defamation.

Defamation is committed when someone publishes to a third person words containing an untrue imputation against the reputation of another. The medium of publication is immaterial.

Traditionally, our courts have seen defamation cases between prominent public figures and newspapers, radio stations or other news outlets. However, it is natural to surmise that as social media becomes increasingly popular, there will be more court cases concerning statements made on such platforms.

In an attempt to adapt to the evolving technology and to our cultural shift of becoming more social online, the Defamation Act was amended in 2013 to include ‘electronic communication’ as a means of disseminating defamatory material.

The act defines electronic communication as a communication of information in the form of data, text, images or sound, or any combination of these, by means of guided or unguided electromagnetic energy, or both. It also defines the Internet as a form of electronic communication.

Though technology has changed, the law surrounding defamation has remained fundamentally the same as it relates to what constitutes defamation, the defences and the available remedies.

In determining whether or not a social media post is defamatory, we can ask these four questions: Is the information in the post factually inaccurate? Would the post tend to lower the reputation of the claimant in the estimation of right-thinking members of society? Would the post tend to cause others to shun or avoid the claimant? Would the post expose the claimant to hatred, contempt or ridicule?

It is important to note that the act stipulates that for defamatory matter published on the Internet, the limitation period for seeking legal remedy is within two years from the date of publication or on the date it is first capable of being viewed or listened to through the Internet, whichever is later. This is identical to the limitation period imposed for defamatory matter published via more traditional media.

However, the court may exercise some leniency with regard to the limitation period, as the act permits a person claiming to be a victim of defamation to apply for an order extending it.

Three defences

The act outlines the defences to defamation – truth, innocent dissemination and fair comment – but makes it clear that the list is not at all exhaustive, which allows a defendant to raise a defence that is not found in the statute.

Using truth as a defence, the defendant must prove that the imputations were true, or not materially different from the truth.

Innocent dissemination requires that a defendant prove three things: that publication was merely in the capacity of a distributor who is subordinate to the publisher, or an employee or agent of the distributor; that they neither knew, nor ought reasonably to have known, that the matter was defamatory; and that the lack of knowledge was not due to any negligence on the part of the defendant.

The act goes further to say that this defence is not available to a person who knows, or ought to have known that the matter was defamatory but proceeded to publish, or to a person who fails to remove the defamatory matter promptly after it has been brought to their attention.

This defence is most commonly used by bookstores, news vendors and various service providers. In applying this defence to the modern age of social media, one might argue that unknowingly retweeting or sharing a defamatory post would not cause someone to be liable in defamation, provided that the sharer’s lack of awareness of the defamatory nature of the post was reasonable.

The fair comment defence applies if the defamatory remark was a comment on facts within the bounds of fairness on a matter of public interest. This is especially applicable as social commentary on social media is quite commonplace.

Under the act, the remedies available to a defamed person include, but are not limited to, damages and correction. Damages are a sum of money calculated by the court based on the unique circumstances of the situation, while correction is where the court mandates that the defendant publish a correction of the defamatory statement.

Social media is not an imaginary world inside our phones and tablets. We are interacting with real people and it is important to exercise caution when sharing material that relates to others, lest we be served with a defamation suit because of a Facebook post.

Francine Derby is an attorney-at-law in the Kingston office of law firm DunnCox. Email: francine.derby@dunncox.com