Facts

The facts of the case were simple and quite scandalous: Tsige, a bank employee, had been looking at Jones’ banking records. Over a period of four years, Tsige had accessed her banking records more than 174 times, obviously contrary to bank policy. Although no information had been published, distributed, or recorded by the respondent in any way, she had access to information that included not only transaction details, but also address, date of birth, and marital status. The reason? Tsige was involved in an ongoing financial dispute with her partner. This partner, in an interesting twist of fate, happened to be none other than Jones’ former husband. Accessing the banking records allowed Tsige to determine whether—and how much—child support was being paid between the former spouses. Not surprisingly, Jones was not too pleased when she found out about Tsige’s ongoing research and appealed to the courts to weigh in on whether people were really still entitled to look over fences to see “what goes on in the plaintiff’s land.”

Expanding the Common Law: The Tort of Invasion of Seclusion

In finding that Ontario law recognizes the right to bring a civil action for damages for the invasion of personal privacy, the OCA emphasized how deeply engrained the value of privacy has become in modern Canadian society. In the context of Charter jurisprudence, the Supreme Court of Canada has held that s.8 affords constitutional protection of a person’s reasonable expectation of privacy (see: Hunter v. Southam, [1984] 2 SCR 145). While the Charter does not apply directly to disputes between private parties, the common law must be developed in a way that is informed by its values. Furthermore, the right to privacy is enshrined in international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

After canvassing cases and academic literature on the topic, Sharpe J. concluded that the right to privacy encompasses four torts “tied together by a common theme and name, but comprising different elements and protecting different interests”: (1) intrusion upon the plaintiff’s seclusion or solitude, (2) public disclosure of embarrassing private facts about the plaintiff, (3) publicity which places the plaintiff in a false light in the public eye, and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The tort that was relevant to the case was the first: intrusion upon the plaintiff’s seclusion. The elements of this tort were set out as follows: first, the defendant’s conduct must be intentional, which includes recklessness; second, the defendant must have invaded, without lawful justification, the plaintiff’s “private affairs or concerns”; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The OCA found that actual proof of harm to a recognized economic interest was not necessary in order to make out the tort of invasion of seclusion. In addressing the perpetual “floodgates” concern that looms on the horizon whenever a court expands the common law, Sharpe J. assured that “claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

Finally, on the issue of damages, the OCA held that since the plaintiff in such cases will not suffer from provable pecuniary loss, symbolic or moral damages will be awarded. Such damages should “be modest but sufficient to mark the wrong that has been done.” The OCA fixed the amount at $20,000. Applied to the facts, Sharpe J. found that Tsige had committed the tort of intrusion upon seclusion. In deciding the proper amount of damages, the OCA weighed countervailing consideration: on one hand, Tsige’s actions “were deliberate… and arose from a complex web of domestic arrangements likely to provoke strong feelings of animosity.” On the other hand, Jones had not suffered any economic loss or public embarrassment. Thus, the amount awarded was $10,000, the mid-point of the range identified.

Analysis:

The Role of the Courts

Whenever courts consider expanding the common law, judges tiptoe a line between cultivating the law in a way that aligns it with the demands of changing circumstance and refraining from stepping on the toes of the legislature as the democratically accountable branch. In this case, this tension was made apparent by the contrasting views of the Ontario Superior Court of Justice and the OCA. The former held that the existence of an intricate framework of privacy legislation in Ontario (e.g. Freedom of Information and Privacy Act, Personal Health Information Protection Act, among others) suggested that the legislature had turned its mind to the issue of privacy and chose not to extend protection to situations like the present.

The OCA held that recognizing a cause of action in the case would not overstep the bounds of appropriate judicial activity since it would only be an incremental change that would keep the law in pace with the changing needs of society. Furthermore, the OCA found it had a role to step in where the legislature failed to act in the name of ‘justice’: “most importantly, we are presented in this case with facts that cry out for a remedy.”

The Value of Privacy

Sharpe J. appropriately qualified the expanded scope of protection for privacy by recognizing that it must often be balanced against—and sometimes sacrificed for—other competing interests. The value that society places on privacy must co-exist with values of freedom of information and freedom of the press. The right to privacy, while important, is never absolute.

The Difficulty of Erecting Fences

Judicial decisions to step in to protect privacy interests seem to be critical at a time when people’s personal information is both widespread and accessible to others but also more difficult to protect by people’s own efforts.  In today’s day and age, “routinely kept electronic databases render our most personal financial information vulnerable… sensitive information as to our health is also available, as are records of books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have traveled.” In today’s day and age, it is difficult to protect privacy simply by building a higher fence.

Jeffrey Allan Ashmore’s final attempt to have his first degree murder conviction overturned on Charter grounds failed on Thursday when he was denied leave to the Supreme Court of Canada. Ashmore was convicted at trial and appealed to the British Columbia Court of Appeal on the basis that his section 9 and section 10(b) rights were violated in the course of the police investigation.  The Court of Appeal upheld the conviction.

Ashmore was arrested by police in May 2006 in connection with the murder of Jeffrey Sabine.  At the time, he was informed of and exercised his right to counsel.  Following this consultation, he was shown a video of a confession he made in the course of a Mr. Big operation (an investigative technique in which an undercover police officer poses as the head of a ficticious criminal organization in order to obtain confessions).  This revelation led Ashmore to again confess and participate in a series of reenactments that essentially sealed his conviction.

At the Court of Appeal, Ashmore argued that his initial consultation with counsel was deficient, particularly in light of the subsequent evidence he was presented with, and that his detention in police lockup and during the reenactments was an arbitrary detention in violation of section 9 of the Charter.  These claims were of dubious merit, and the Court ruled that his initial consultation was sufficient (see R v Sinclair, 2010 SCC 35) and his detention was lawful because his choice to participate in reenactments was voluntary.

Interestingly, Ashmore raised little objection to the Mr. Big tactic, beyond arguing the fact that the evidence was prejudicial in that it gave the jury a biased view of his character.  This may be due to the fact that Canadian courts routinely uphold confessions obtained through the tactic, the only basis of exclusion being where the judge deems the “prejudicial effect outweighs its probative value.”

The Mr. Big technique is exclusive to Canada and Australia and particularly popular in British Columbia, where it originated in the early 1990s. However, it is not without controversy.  Critics cite the possibility of eliciting false confessions as reason for questioning it, while supporters argue that much of the criticism is misinformed.

Despite the controversy it generates (the technique is illegal in the US and UK) it has been subjected to little judicial scrutiny in Canada.  With critics and supporters so divided on the issue, a legislative response may be imminent if the judiciary chooses not to react one way or the other.

Clarifying the Common Law Test for Nuisance

The test for establishing a common law claim in nuisance is relatively straightforward, requiring an interference with an individual’s property that is both substantial and unreasonable. However, difficulty can arise in the application of this test when it comes to balancing the competing interests of property owners. This balancing act is more complicated when the interests of one property owner are of benefit to the public. In these circumstances, the question arises as to how much weight should be given to the social utility of a public project that interferes with the private property of another.

The Supreme Court of Canada will address this question in an appeal that was recently granted for Antrim Truck Centre Ltd. v Ontario Transportation, 2011 ONCA 419. This case arose from a dispute between the applicants, the owners of the truck stop, and the Ministry of Transportation (MOT) after it completed the construction of a new highway, which Antrim claimed “severely impeded” access to the truck stop. After experiencing a significant decline in business and re-locating the truck stop, Antrim filed an application with the Ontario Municipal Board (OMB) for business damages and the costs of relocation.

Under section 21 of Ontario’s Expropriations Act, landowners are entitled to compensation from an expropriating authority for “loss or damage caused by injurious affection.” To proceed with a claim for injurious affection, Atrim was required to prove that but for the statutory powers of the Province, it would have an actionable claim under common law. The OMB found that Atrim satisfied this requirement by establishing “a serious impairment in nuisance” and granted personal and business damages, though the costs for relocation were dismissed.

The MOT appealed the decision to the Ontario Divisional Court, which agreed with the board’s decision that the highway’s interference with Atrim’s property was “substantial” (2010 ONSC 304). To determine whether the interference was “unreasonable,” the court relied on the four factors set out in Tock v St. John’s Metropolitan Area Board, [1989] 2 SCR 1181, and 340909 Ontario Ltd. v Huron Steel Products (Windsor) Ltd., (1990), 73 O.R. (2d) 641 (S.C)., aff’d (1992), 10 O.R. (3d) 95 (C.A.):

1. the severity of the interference;
2. the character of the neighbourhood;
3. the utility of the defendant’s conduct; and
4. the plaintiff’s sensitivity.

Claiming that the Divisional Court erred in upholding the OMB’s decision, the MOT appealed again to the Ontario Court of Appeal. In that decision, Epstein JA considered whether a successful claim in nuisance requires a balancing of the competing interests of the landowners. After reviewing the relevant jurisprudence, Epstein JA concluded that “the important principles of tolerance and accommodation necessary to sustain harmony among neighbours in an increasingly dense and complex society require a balancing of the interests of both parties to determine whether it is appropriate for the court to intervene to preserve the right of either to use their property as they wish.”

Applying this reasoning to the facts, Epstein JA concluded that by relying almost exclusively on the issue of substantial interference, without giving much consideration to reasonableness, the divisional court had failed to balance the parties’ competing interests. While the board had considered the reasonableness of both parties’ uses, Epstein JA also concluded that it failed to give sufficient weight to the utility of the new highway, which was built to save lives. By weighing the interference with Atrim’s property against the reasonableness of the new highway, Epstein JA concluded that Atrim had failed to establish a claim in nuisance, and thus allowed the MOT’s appeal to proceed.

Epstein JA’s decision is significant because it suggests that an interference with private property should not give rise to an actionable claim in nuisance when there is a public interest at stake, even when the interference is found to be substantial. While a balancing of interests should play a role in determining the validity of a nuisance claim, the weight that courts give to interferences with social utility warrants a further clarification that the eventual SCC decision will ultimately provide.

The RMS Titanic struck an iceberg on her maiden voyage from England to New York City. The ship sank on April 15, 1912. History repeated itself nearly 100 years later when the Costa Concordia hit a rock off the Coast of Italy and sunk on January 13, 2012. As of January 30, 2012, 17 are dead, and 15 are still missing. Since the incident, charges and lawsuits have started to roll in: criminal against the captain, and financial against Carnival Corp., the ship owner and the world’s largest cruise operator.

Francesco Schettino, the ship’s captain, has been charged with multiple counts of manslaughter and abandoning ship before the evacuation of more than 4,200 passengers and crew was complete.

There is prospect for an extended legal battle, with lawyers from around the world launching class action and individual suits against Carnival Corp. Codacons, Italy’s best known consumer group, a German lawyer, and two American law firms are filing a class action suit in Miami, Florida with the intention of seeking $165,000 per passenger.

This figure contrasts Costa’s “hush money” offer. Costa is offering all passengers aboard the Concordia €11,000 (roughly $14,000) in compensation in return for an agreement to drop any legal action. The settlement also offered the standard reimbursement for the full cost of the cruise, related travel expenses and additional funds for medical expenses after the accident, lost baggage, and psychological trauma incurred. While some passengers are taking the money, eager to put this trauma behind them, others are offended by the meagre sum, having suffered a traumatic experience and losing priceless items when the ship sunk.

This offer brings up the tension between the advantages of settling and the gamble of taking on litigation. While the sum of damages the suit is anticipated to award is more than ten times that of Costa’s offer, victims would receive the money immediately. The trial may be as far as ten years away, with the possibility of appeal, and then further delays in receiving the damages award. Mr. Ramadori, a lawyer for Codacon warned, “Today’s proposal from Costa simply exploits the lengthy Italian justice system to scare people away from the class action” – though this may just be an attempt to pressure passengers to join the suit.

While the Titanic spurred a major motion picture and several Oscars, this disaster will likely bring many more lawsuits and a spectacle for the world.

A Different Kind of Roadblock: The Indian Act Today

There was great excitement in Aboriginal communities last Tuesday, January 24, when hopes of repealing the highly contentious Indian Act came to the forefront at the Crown-First Nations Gathering in Ottawa. Those feelings were quickly replaced with disappointment when Prime Minister Harper called for creative changes to the Indian Act, rather than taking steps to abolish it. Ironically, this year will mark the 200th anniversary of the War of 1812, when Aboriginals joined forces with the Crown.

The Indian Act was enacted in 1876 alongside the Constitution, granting jurisdiction of related matters to the federal government under section 91(24). The Act largely covers issues of status, the administration of land and various rights, and the fiduciary duty the Crown has toward Aboriginals. Since its adoption, amendments have been made to better reflect the needs and concerns of the community, particularly with Bill C-31 in 1985, which made significant changes to how the Act grants Indian status.

Recent problems like the Attawipiskat housing crisis have reinvigorated discussions on the Act, with many First Nations groups pointing to the need for change in their relationship with the Crown. National Chief of the Assembly of First Nations Shawn Atleo has commented that the Act is a “painful obstacle to re-establishing any meaningful partnership.” For now, that obstacle seems like it’s here to stay.

Cultural Pluralism? Not in Our House

A “heinous crime against humanity” is what the Canadian embassy of Afghanistan called the deaths of four women Monday morning. Mohammad Shafia, his wife Tooba Mohammad Yahya, and their son Hamed were each convicted of four counts of first degree murder at a Kingston, Ontario courthouse. Zainab, Sahar, and Geeti Shafia, as well as Rona Amir Mohammed were found dead last June, drowned in a Nissan in the Kingston Mills locks.

The prosecution successfully argued that the car had been pushed into the lock by one of the family members driving behind. The damage on both vehicles, as well as Google searches by Hamed on “how to kill,” and “bodies of water,” were used as corroborating evidence. Wiretaps revealed the father’s disdain towards the girls, with remarks about how their deaths preserved the family honour, and how he hoped the devil would defecate on each of their graves.

The defence argued that the parents were together in a hotel room. Mohammed admitted to a private investigator that he had, in fact, hit the car and heard a splash, but did not tell anyone at the time, and not for several months after either.

Many have identified the deaths as honour killings, a cultural justification for murder and disownership found in some areas of the Middle East and South and Central Asia. Such crimes are mostly perpetrated against women for bringing shame to the family, tribe, or wider community, by dressing provocatively, or engaging in sanctioned sexual behaviour. At stake in these situations is the preservation of a family’s position and moral standing in the respective society. Bloodshed is, often, what the family believes to be the only thing that will purify the pollution caused.

The family has already appealed the decision, but they haven’t yet gotten around to fixing an error of a mistaken date of birth on one of the gravestones. Who knows if they ever will.

The main issue before the SCC in Imperial Tobacco was whether to strike out third-party notice that added the Government of Canada as a third-party to two cases before the courts of British Columbia: British Columbia v. Imperial Tobacco Canada Ltd., 2009 BCCA 540 (“Costs Recovery”) and Knight v. Imperial Tobacco Canada Ltd., 2009 BCCA 541 (“Knight”). In the Costs Recovery case, the Government of British Columbia sought to recover costs for medical treatment of individuals suffering from tobacco-related illnesses, alleging that the tobacco companies failed to warn the public about the risks associated with cigarettes. In the Knight case, a class action was brought against Imperial Tobacco on behalf of class members who purchased “light” or “mild” cigarettes. The class alleged that the tobacco industry misrepresented the levels of tar and nicotine listed on the packages.

Imperial Tobacco pleaded that Canada researched, designed, developed, tested, manufactured, and promoted the “light” and “mild” strains of tobacco at issue in the Knight case, and that it received licensing fees and royalties for the tobacco strains it developed in return. Additionally, Imperial Tobacco alleged that Canada made misrepresentations to consumers and Imperial Tobacco about the relative safety of cigarettes containing the tobacco strains designed by Canada. Accordingly, Imperial Tobacco raised numerous claims against Canada in both cases. For example, the tobacco companies claimed that Canada owes a duty of care to Imperial Tobacco and consumers for negligent design, failure to warn and negligent misrepresentation. The tobacco companies also claimed entitlement to equitable indemnity from Canada; even if Canada is not liable under any of the third-party claims, they claimed entitlement to declaratory relief.

The test to strike out a claim is well established: assuming the facts as pleaded are true, if it is plain and obvious that the pleading discloses no reasonable cause of action, a claim will be struck. The SCC struck out all of the claims against Canada, holding that none of them had a reasonable chance of success. This post focuses on the clarification of the concept of “policy” provided by the SCC.

The crux of the appeal was to differentiate between governmental “policy” and “operational” decisions. Government actors have no duties in negligence with respect to policy decisions, yet they may attract tort liability when they are negligent in carrying out prescribed duties. Policy decisions are exempted from tort liability because the Crown must be free to govern and make policy decisions without becoming subject to tort liability as a result of those decisions. The question then becomes what constitutes a policy decision that is protected from negligence liability? While various courts have addressed this question, the SCC said that the answer remains elusive. The policy/operational approach, albeit the dominant approach in Canada, “does not work very well as a legal test.” Courts have found it notoriously difficult to decide whether a decision falls on the policy or operational side of the line.

After a review of foreign jurisprudence, the SCC made the following three observations: 1) the net of immunity is cast too broadly if all the rational government acts that involve discretion are protected; 2) only “core” policy decisions should be protected from negligence liability; and 3) core policy decision should not be defined as a “non-operational” decision, but should be defined positively as a decision that is grounded in social, economic and political considerations.

Based on these premises, the SCC concluded that “core” policy governmental decisions protected from judicial review are “decisions as to a course or principle of action that are based on public policy consideration, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith.” This approach emphasizes positive features of policy decisions, instead of defining the decision negatively as one that is not an “operational” decision. Additionally, it is not a litmus test and the degree of “policy” involved should be taken into account. Furthermore, government actors with the responsibility of formulating a course of action based on social, economic or political factors are likely to be immune.

After the SCC fashioned this clearer policy/operational test, it held that the claims to negligent misrepresentation, failure to warn and negligent design were struck out because they were related to core policy decisions. Assuming that the facts as pleaded were true – Canada falsely represented to consumers and to tobacco companies that low-tar cigarettes were less harmful – Canada developed this public health policy out of concern for the health of Canadians. Additionally, the Minister of Health’s recommendations on warning labels are integral to the policy of encouraging smokers to switch to low-tar cigarettes. Furthermore, even though Canada owed a prima facie duty of care to the tobacco companies when it negligently designed its strains of low-tar tobacco, policy considerations negated this duty because Canada’s decision was based on Canada’s health policy.

Although the SCC restricted government immunity to only “core” policy decisions, it is not enough to hold Canada liable because the government made the decision out of public health policy concerns. Other provinces, including Ontario, also followed the British Columbia model and enacted similar legislations to recover health care costs incurred for treating smoking-related diseases. It will be interesting to see how the tobacco industry will attempt to stretch legal boundaries to delay payments in the years to come.

To succeed in a defamation action, a plaintiff must first prove that defamatory words were published. The decision in Crookes stands for the proposition that a hyperlink, by itself, is not publication of the content to which it refers. Publication will only occur if the hyperlink is presented in a way that repeats the defamatory content. This article discusses the decision’s background, reasoning, and implications.

Background

The appellant brought numerous defamation actions against various individuals and organizations alleging that he had been defamed in several articles on the internet. After those actions were commenced, the respondent posted an article on his website which commented on the implications of the plaintiff’s defamation suits for operators of internet forums. The respondent’s article included hyperlinks to websites containing some of the allegedly defamatory articles that were the subject of the plaintiff’s actions. However, the respondent’s article did not reproduce or comment on the content in those articles.

The appellant discovered the respondent’s article and advised him to remove the hyperlinks. When the respondent refused, the appellant brought an action seeking damages for defamation on the basis that the hyperlinks constituted publication of the allegedly defamatory articles. There was evidence that the respondent’s article had been viewed 1,788 times, but no evidence as to how many times, if any, the hyperlinks in the article had been followed.

Decision of the Supreme Court of Canada

The issue on appeal was whether creating a hyperlink to allegedly defamatory material constitutes publication of that material. The reasons of the six-justice majority, penned by Abella J., began by describing the evolution of the “publication rule.” Under this rule, any act which had the effect of communicating defamatory words to a third person constituted publication. The breadth of activity caught by the publication rule over the years has been vast. For example, a person whose role was to manually operate a printing press was, in one older case, found liable for defamatory words contained in the publication, despite being unaware of its contents.

The majority observed that the harshness of the publication rule was later alleviated by the development of the “innocent dissemination” defence, which protects defendants that play a role in the distribution of potentially defamatory material.  Defendants, such as booksellers and libraries, may avoid liability if they had no actual knowledge of alleged libel, were not aware of circumstances that would give cause to suspect a libel, and were not negligent in failing to discover the libel.

The majority also recognized that, in recent years, the application of the publication rule has been tempered by cases which suggest that some acts of communication are so passive that they should not be considered publication. For example, the majority referred to English cases in which internet service providers and search engines were not held liable as publishers because they only played a passive instrumental role, and acted without knowledge, in the process of publishing the defamatory words. In other cases referred to by the majority, courts had held that merely making a reference to defamatory material was not publication.

In light of these developments, the majority concluded that creating a hyperlink to defamatory material is not the type of act that constitutes publication. In the majority’s view, modern realities made it necessary to interpret the publication rule to exclude references, such as hyperlinks, in order to accord with Charter values, recent jurisprudence, and the evolution of communications technology.

In declining to expose hyperlinks to the wide breadth of the traditional publication rule, the majority reasoned that hyperlinks are essentially content neutral references to material that hyperlinkers have not created and do not control. Although a hyperlink communicates that information exists and may facilitate the transfer of information, it does not, by itself, communicate information.

It is also significant that the majority’s reasons focused on the important role of the internet in promoting freedom of expression, and the importance of hyperlinks in facilitating access to information on the internet.  As Abella J. writes,

[36]      The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.  Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

However, the majority also recognized that a hyperlink will constitute publication if it “presents content from the hyperlinked material in a way that actually repeats the defamatory content.” This might occur, for example, where a person inserts a hyperlink in text that repeats the defamatory content in the hyperlinked material. In these cases, the hyperlink would be more than a reference; it would be an expression of defamatory meaning. This had not occurred in the case at bar, so the majority dismissed the appeal.

McLachlin C.J.C. and Fish J. substantially agreed with the majority, but held that “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” In their view, a hyperlinker should be liable for linked defamatory content if the surrounding context communicates agreement with the linked content. In these cases, the hyperlink “ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”

Deschamps J. agreed with the result, but disagreed with the approaches taken by the other justices. In her view, the blanket exclusion of all references from the scope of the publication rule erroneously treats all references alike. According to Deschamps J.’s reasons, the majority’s approach “disregards the fact that references vary greatly in how they make defamatory information available to readers and, consequently, in the harm they cause to reputations.” To address this concern, Deschamps J. proposed a nuanced and highly fact-driven framework under which a hyperlink would constitute publication if the plaintiff established two elements: that the defendant “performed a deliberate act that made defamatory material readily available to a third party in a comprehensible form,” and that “a third party received and understood the defamatory [material].”

To establish the first element under Deschamps J.’s approach, plaintiffs would need to demonstrate that the defendant played more than a passive instrumental role in making the information available, and make reference to numerous factors bearing on the ease with which the referenced information could be accessed. To establish the second element, plaintiffs would need to adduce direct evidence that a third party had received and understood the defamatory material, or convince the court to draw an inference to that effect based on the totality of the circumstances.

Implications

Crookes presented the Court with a welcome opportunity to consider the proper balance between the competing interests of freedom of expression and the protection of reputation in the context of internet communications. Five years ago, defamation law leaned significantly towards protecting reputation. Today, as a result of Crookes and other landmark cases – such as WIC Radio Ltd. v. Simpson, 2008 SCC 40, and Grant v. Torstar, 2009 SCC 61 – defamation law better protects and promotes the fundamental right to freedom of expression.

However, the decision in Crookes could have undesirable consequences in certain circumstances. As the Court recognized, the internet’s borderless and far-reaching mode of publication has tremendous power to harm reputation. As a result of Crookes, a victim of internet defamation who wishes to vindicate their reputation and prevent the spread of defamatory material only has a remedy against the person who created and controls the material – not persons who have referred their readers to it.

It is surprising that in the majority’s view this approach creates “little or no limitation to a plaintiff’s ability to vindicate his or her reputation.” Yet, in some cases, the majority’s approach may create opportunity for abuse that significantly limit a plaintiff’s ability to vindicate their reputation. The creation of a hyperlink is a means by which defamatory material can be rapidly disseminated. Defamatory material contained on an obscure website may, for example, receive the attention of a vast number of readers if a popular blogger hyperlinks to it. In these circumstances, the plaintiff would have no action against the hyperlinker, even if they created the hyperlink with the malicious intent of spreading the defamatory words.

Such a situation would be especially troubling if the victim were also unable to pursue a remedy against the creator of the defamatory material because they published the material anonymously – a common occurrence on the internet. In addition, if the defamatory material were posted on a third party’s website operated in the United States, and that website passively hosted the material, legislation would apply to immunize the operator of the website from liability: see Communications Decency Act, 47 U.S.C. § 230 (1996); see also Crookes at para. 28. If the operator of the website refused to remove the defamatory material, it would remain visible for the world to see. The victim would be left without any remedy and, meanwhile, the use of hyperlinks could cause the defamatory material to rise from obscurity to notoriety.

Although this concern might be alleviated by adopting the more contextual and nuanced approaches suggested by McLachlin C.J. and Fish J., and Deschamps J., those approaches lack the welcome certainty of the majority’s bright-line rule. McLachlin C.J. and Fish J.’s test for publication is dependent on the presence of indicia of “adoption or endorsement,” the scope of which is inherently uncertain. Deschamps J.’s approach is similarly fact-driven. If either test applied, it would be difficult to predict in advance whether a hyperlink constituted publication. Uncertain exposure to liability might then deter the public from using hyperlinks, which could inhibit the internet as a medium for free expression. This very concern likely drove the majority to establish its bright-line rule.

The non-majority approaches would also have the undesirable effect of shifting the weight of litigation to defendants. Once a plaintiff establishes a prima facie case of defamation, the onus shifts to the defendant to raise any available defences. Both of the non-majority approaches would lower the threshold to be met by plaintiffs in order to establish a prima facie case. As a result, more internet users would be thrown into the costly position of having to justify their conduct by reaching for the protection of a defence. Although the wide availability of defences for hyperlinkers may, as Deschamps J. suggests, “dissuade overeager litigants from having a chilling effect on hyperlinking,” it would not deter plaintiffs who wish to stifle criticism by intimidating defendants through costly litigation.

Lastly, it is important to recognize that the decision in Crookes may not be the final word on defamation liability for hyperlinks. The Court expressly left open the question of whether the same principles apply to embedded or automatic hyperlinks, which automatically display referenced material with little or no prompting from the reader. These hyperlinks are distinguishable from the user-activated hyperlinks in Crookes, which require users to click on the hyperlink in order to access content. Although the Court declined to comment on the legal implications of automatic or embedded hyperlinks, it appears that they would constitute publication, according to the majority’s reasoning, to the extent that they make third party content appear as part of the website that the hyperlinker controls.

Matthew Nied is a guest contributor to TheCourt.ca. He is currently an articling student in Vancouver.

Six months ago, a St. John-area lawyer filed a class action lawsuit against the province of Newfoundland and Labrador. The lawyer, Ches Crosbie, claims that the provincial government is responsible for the injuries suffered by motorists who crash into moose on the road.

On Tuesday of last week, Justice Richard LeBlanc of the Supreme Court of Newfoundland and Labrador supported certification of the case. Thus, Ches Crosbie and the victims he represents were given the green light to proceed with their class action lawsuit, which may have wide legal ramifications for class proceedings and for the duty of care owed by public authorities.

A Novel Statement of Claim

The statement of claim that Ches Crosbie is putting forward has no legal precedence that either side is aware of. None of the allegations noted have ever been tested in court.

At the heart of Crosbie’s case is the population of moose in Newfoundland and Labrador. Specifically, the plaintiffs point to the fact that these animals are not native to the province. Because they are alien species brought in by earlier settlers, the government is responsible for controlling the growth of the species. “Wildlife practices of the defendant have allowed the moose population on the Island to reach numbers in the range of 120,000 to 200,000 … multiplying the danger of moose collisions for users of the highways,” reads the statement of claim. The statement of claim also adds: the “government made a decision to bring this non-native invasive species here about a hundred years ago,” but the government has “avoided taking responsibility for managing the hazard it created.”

Accordingly, the plaintiffs demand that the Newfoundland and Labrador government take actions to cut the population of moose by half as a means to protect drivers. As well, moose near roads should be allowed to be killed by officials and fences should be installed along roads to keep them out.

Certification of Class Proceeding

Another big question raised by this case is the requirements of class proceedings. Although Justice LeBlanc backed the certification of the case, he did raise questions about who could be considered in the class. Initially, the class was restricted to those who were involved in vehicular accidents on provincial roads that needed hospital treatment. These victims must also be residents of Newfoundland and Labrador. Justice LeBlanc questioned why victims who received outpatient care or who reside outside of the province should be excluded from the class. In response to this inquiry, the lawyer responded: “Restricting the class definition to make it more manageable to a lower number of the most deserving people in terms of their injuries was something that we thought was wise to do in an environment where there’d be a lot of skepticism… But in light of the judge’s comments now, and in light of the fact that this class action seems to have a lot more credibility … we’re going to have to have another look at that.” As it stands, there are approximately 69 to 100 victims represented by Crosbie, all of whom needed hospital care after the accident in the last ten years. If Crosbie takes LeBlanc J.’s advice to heart, then the class could easily balloon to thousands of people. (The government of Newfoundland and Labrador has not yet filed a statement of defense, and the government lawyers have not blocked any initiatives to enlarge the class of plaintiffs.)

The victims whom Crosbie is working with are seeking not only personal injury and general compensation, but also actions from the government, including moose fencing, a cull of the herd, etc.

Duty of Care Owed by Public Authorities (Just v. BC)

At first glance, this case may seem sensational. Upon further examination, though, the legal issue at the heart of this case should remind us of a case that was heard some 20 years ago. The legal analysis will turn on the duty of care that is owed by public authorities. The guiding case is the 1989 Supreme Court of Canada case of Just v. BC. In the earlier case, the issue of governmental liability was raised when a boulder fell on a car, killing one passenger and seriously injuring another. The plaintiff claimed that the government had neglected to properly maintain the highway. At the trial and Court of Appeal levels, the judges held the government of British Columbia to not be liable in tort, as the entire inspection system and its implementation are policy matters.

What ultimately comes out of the Just case is a test for when governmental actions are exempt from liability, to as to allow government actors to exercise their duty to formulate public policy without intervention from the courts. This is fundamental to the division of powers in our country.

First, the majority of the judges on the Supreme Court found there to be general proximity because “the Department of Highways could readily foresee the risk that harm might befall users of a highway if it were not reasonably maintained.” Once general proximity is established, the Court in turned their attention to statutory exemptions and the difference between an operational decision and a policy decision. That forms the crux of the Just test. “Government agencies may be exempt from the application of the traditional tort law duty of care if an explicit statutory exemption exists or if the decision arose as a result of a policy decision,” summarizes the Court.

The Court found that there was no statutory exemption, so it proceeded to distinguish policy decisions from operational decisions, explicitly noting that the former concerns budgetary allotments for departments or government agencies. This kind of investigation usually includes an inquiry into where on the governmental hierarchy the decision was made, whether it was done with advanced planning as opposed to being executed on the ground, etc.

While it was a policy decision to have safeguards on the highway, the majority of the Court found that the government failed to exercise due care in the operation of the policy — in the manner and quality of the inspection system. Having found no statutory exemption and having dismissed it as a policy decision, the Court ordered a new trial to more fully investigate the facts of the case (i.e. budgetary restrains, availability of personnel, etc.) in Just.

Budgetary Considerations

“I think that resources will be the key issue, [as in] to what extent can the government plead straitened fiscal circumstances in a negligence claim?” states Prof. Allan Hutchinson.

Following the decision in Just v. BC and the earlier Anns test, the Supreme Court of Newfoundland and Labrador will likely find there to be a proximate relationship between the government and the motorists injured or killed in moose accidents. It is foreseeable that moose, left unfenced, will run onto the road and get hit by cars. Similarly, there would be no statutory exemptions in this case. So, the case ultimately rests on the distinction between policy and operational decisions — the Just test. In trying to plead that it is a matter of policy, the government is likely to point to economic hardships and the provincial deficit. Due to constraints on its budget, the provincial government could not have taken additional measures to maintain the moose population and keep them away from roads and highways, or so the argument would go. Depending largely on the facts of this case, that line of reasoning may or may not succeed.

On the other hand, some scholars argue that this case will probably settle out of court. The legal issues raised are not entirely novel, and the litigation process can become drawn out and increasingly expensive.

After seeing the picketers on a news broadcast, Albert Snyder filed an action against Mr. Phelps, Phelps’ daughters and the Westboro Baptist Church, claiming, among other things, the tort of intentional infliction of emotional distress.  After a jury awarded Mr. Snyder compensatory damages of $2.9 million US dollars and punitive damages of $8 million dollars, a decision affirmed by a District Court judge (though he reduced the amount of punitive damages), Mr. Phelps appealed to the Fourth Circuit Court of Appeals, claiming that his protests were fully protected by the freedom of speech in the United States Bill of Rights.  The First Amendment states:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Fourth Circuit allowed Mr. Phelps’ appeal (PDF), and Mr. Snyder was granted certiorari by the U.S. Supreme Court (“SCOTUS”).

On March 2, the majority of the Court (Justice Alito dissenting) upheld the Fourth Circuit decision in Snyder v. Phelps, No. 09-751 (PDF), ruling that the First Amendment shielded the picketing activities of Westboro Church from tort liability.  Rather than tackling the elements of the civil claim, the majority asserted that the public nature of Westboro’s protests warranted “special First Amendment protection,” again underscoring the ascendancy of freedom of speech in American law, an approach Canadian courts have tended to avoid.

The SCOTUS Ruling: “As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Writing for the majority, Chief Justice Roberts concluded that the content of Westboro’s signs clearly addressed broader issues of public concern, and that this type of speech was constitutionally protected.  He concluded that, though far from being “refined social or political commentary,” Westboro’s slogans were directed at the general “political and moral conduct of the United States and its citizens” rather than at Matthew Snyder specifically.  Furthermore, Chief Justice Roberts emphasized that Westboro protested peacefully in compliance with police orders in a “public place” about 1,000 feet away from the church where the funeral was being held.  He further highlighted that Mr. Snyder had only seen the tops of the picketers’ signs as he drove to the funeral.

In a concurring judgment, Justice Breyer conceded that picketing – even picketing on matters of public concern – could still be regulated by the State, but maintained that in this context Westboro had protested lawfully in compliance with police directions.  In his opinion, awarding Mr. Snyder damages would have unduly restricted freedom of speech without guaranteeing a greater protection for individuals against severe emotional harm.

The Dissent: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

In his dissent, Justice Alito challenged the majority’s argument that Westboro’s protests were not directed at the private person of Matthew Snyder.  He maintained that the Phelps family had specifically chosen to picket at Snyder’s funeral rather than at any other “public place”; that they had issued internet posts before and after the protest targeting the soldier and his family; and that a “reasonable person” would have drawn a connection between the messages on the signs and the deceased.

Moreover, Justice Alito found that “the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.”  In other words, constitutionally protected speech did not mechanically shield the originators from harm created by that speech.  Both the First Amendment freedom of speech and the tort could co-exist.  In this case, both the jury and District Court were satisfied that the plaintiff had proven the tort of intentional infliction of emotional distress, that

the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.

In fact, the respondents did not contest this.  Rather, they had insisted that their speech deserved “special protection” under the First Amendment.  The tort claim could still, therefore, have succeeded.

The First Amendment: Sword or Shield?

The majority’s reasons raise several questions.  First, they appear to confuse the public content of speech with speech used in a public place.  It continued to emphasize that Westboro’s protest occurred “at a public place” and that “the church members had a right to be where they were.”  Considering that the speech the majority purported to protect was that which related to “matters of public concern,” Chief Justice Roberts’ ongoing assertion that the defendants were at a public place is overstated.  Furthermore, although the majority felt at liberty to explore the location and history of Westboro’s protests, its reasons entirely overlook that both the purpose and effect of the picketers’ speech, though perhaps containing various “public” matters, were to target and harangue the Snyder family.  The defendants’ press release before the protest and their online account afterwards made it clear that they intended to personally attack Matthew Snyder with messages such as, “God Almighty killed Lance Cpl. Snyder.  He died in shame, not honor.”  Consider the following excerpt from a post the Phelps’ published after the picketing:

God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew.  He was an arrow in your quiver!  In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD!  You did JUST THE OPPOSITE—you raised him for the devil.

Finally, the Court seems too eager to overrule a careful finding that was made by a jury and affirmed by the District Court.  The respondents ultimately did not contest the finding that Mr. Snyder had suffered “severe and lasting emotional injury” from their speech.  In fact, the harm was so serious that the jury, after having heard Mr. Snyder’s testimony and deliberated judiciously, decided to award the plaintiff over $10 million dollars in compensatory and punitive damages.  First Amendment experts have stressed that while the “ordinary person” might be stunned by the SCOTUS decision, the judgment merely fell in a line with a string of precedents that upheld the importance of free speech.  However, the majority’s decision to disregard the jury’s verdict and accommodate Westboro’s protests might also be a sign that American law, meant to uphold broad societal values, may, in fact, be frustrating them.

SCOTUS’ decision to use the First Amendment to shield the Phelps family from liability stands in stark contrast to the approach that Canadian courts have adopted.  For instance, my recent commentary on the SCC’s Bou Malhab ruling shows that while freedom of speech may play into the background of judicial analysis, Canadian courts will not use it to overrule a civil claim where each element of the claim has been successfully established.  Even explicit s. 2(b) freedom of expression Charter claims must satisfy the s. 1 justification analysis.  As Justice Alito suggested in his dissent, there is no apparent reason why freedom of speech and the tort of intentional infliction of emotional distress cannot co-exist, even complement one another.  ”Special” First Amendment protection was not, in my opinion, a well-founded, well-reasoned legal principle.  It merely demonstrated that there is no “balance” between freedom of speech and protection from harm created by speech.  Rather, freedom of speech is simply supreme.

Ultimately, the SCOTUS decision appears to undermine a basic tenet: there is freedom of speech, but, as with any other action, you have to be prepared to accept the consequences of that speech, particularly if real and serious harm is sustained.  You can’t use it as both a sword and a shield.

For more reading on reactions to the SCOTUS decision, check out a case comment written by NYU Professor Richard A. Epstein here, and a comprehensive look at the implications of the judgment by Texas Southern University Professor Deana Pollard Sacks here.

What links these cases together is the fact that they were brought by one riled plaintiff.  Indeed, most defamation cases are brought by one plaintiff.  But what happens if a defamation suit is brought as a class action?  Success gets a whole lot harder – was the message sent by the SCC in Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, released February 17.  In a 6-1 judgment (Justice Abella dissenting), the Court dismissed the plaintiff’s action for damages, holding that he had failed to show that each member of the group had sustained personal injury from inflammatory comments made by a radio show host.

“Polemicist” radio show host adds last straw

The facts of the case are as follows.  In November 1998, André Arthur, the provocative morning show host of Montreal’s CKVL radio station, made some controversial comments during a discussion on restaurants and hotels in the city.  This was the excerpt included in the SCC judgment:

[TRANSLATION] Why is it that there are so many incompetent people and that the language of work is Creole or Arabic in a city that’s French and English? . . . I’m not very good at speaking “nigger”. . . . [T]axis have really become the Third World of public transportation in Montreal. . . . [M]y suspicion is that the exams, well, they can be bought. You can’t have such incompetent people driving taxis, people who know so little about the city, and think that they took actual exams . . . . Taxi drivers in Montreal are really arrogant, especially the Arabs. They’re often rude, you can’t be sure at all that they’re competent and their cars don’t look well maintained.

Farès Bou Malhab, a taxi driver whose mother tongue was Arabic, heard Mr. Arthur’s comments and launched a class action suit of defamation against Diffusion Métromédia, which operates CKVL.  Justice Guibault of the Superior Court of Quebec held that (unofficial English translation here) Mr. Arthur’s statements were wrongful and awarded damages to those taxi drivers who had heard them.  The majority of the Quebec Court of Appeal overturned the trial judge (French only), holding that personal injury had not been established, as the group targeted by Mr. Arthur’s comments was large enough to dilute the accusations.

SCC re-visits the establishment of “injury” in defamation

In her reasons for the majority, Justice Deschamps first took some time to clarify the principles of civil liability for defamation.  She outlined a three-step analysis in awarding compensation for defamation:

1. Fault – Whether a reasonable person would have made the impugned remarks in the same context;
2. Injury – Whether an ordinary person would have believed that the comments damaged the reputation of each member of that group, with the result that each of them sustained personal injury; and
3. Causal connection between the fault and injury.

With respect to Step 2, Justice Deschamps wrote that “the plaintiff must prove an injury shared by all members of the group.”  More importantly, she introduced a non-exhaustive list of factors to consider in establishing personal injury.  They are:

Size of the group (the larger the group, the more difficult it is to prove each member sustained personal injury)

Nature of the group (homogeneity, history of stigmatization)

Plaintiff’s relationship with the group

“Real target” of the defamation (precision or generality of the allegations)

Seriousness or extravagance of the allegations

Plausibility of the comments and tendency to be accepted

Extrinsic factors (e.g. characteristics of the maker or target of the allegations, the medium used, general context)

Cab drivers fail to measure up to Supreme Court’s meter

In examining the factors she laid out, Justice Deschamps concluded that Mr. Bou Malhab had not proven that each member of the group had sustained personal injury from Mr. Arthur’s accusations.  She found that,

the group is of considerable size and is heterogeneous, that the characteristics attributed to the members of the group are individual and do not lend themselves well to extrapolation, and that the remarks are an extreme, irrational and sensationalist generalization.

She accordingly dismissed Mr. Bou Malhab’s action.

Justice Abella, on the other hand, raised a few salient points in her dissent.  First, she challenged the definition of the “ordinary person” the majority had adopted as one which would embody characteristics such as an awareness of prejudices and discriminatory practices and knowledge of systemic discrimination.  She likened such a description to that of “an ordinary third-year law student.”  Furthermore, although she agreed with Justice Deschamps’ list of personal injury factors, in applying them to this case, Justice Abella reached a different result.  She found that Mr. Arthur had made some serious allegations which distinguished an identifiable and vulnerable group that interacted with the public on a daily basis.  In her opinion, it was clear that this group of taxi drivers could suffer harm both to their reputation and to their business.

Freedom of speech driven too far?

Both the majority and the dissent set this case up as a balance between freedom of expression and the importance of restricting harmful speech.  Justice Deschamps opened her set of reasons with some substantial rhetoric on the importance of free speech and a survey of Western courts that are granting that freedom increasing scope and flexibility.  It was certainly a vigorous attempt to justify the majority’s decision when freedom of speech did not play into the legal analysis nor reappear in the rest of the judgment at all.  The repercussions of Mr. Arthur’s comments on Arab and Haitian taxi drivers, however, did.

In her description of the “ordinary person,” Justice Deschamps emphasized the perspective of “others.”  The ordinary person was “the embodiment of the society that receives the impugned comments.”  However, in its legal analysis, the majority of the SCC did not come close to describing who Mr. Arthur’s audience – which might already hold existing, unfavourable notions about the ethnic groups targeted – was.  I agree with Justice Abella that the targets of Mr. Arthur’s allegations were members of highly vulnerable and stigmatized social groups.  Mr. Arthur had made very serious accusations, which were not intended to be ironic or satirical, against groups that were already marginalized.  In fact, as Justice Abella pointed out, the trial judge had even concluded that the comments were racist.  An “ordinary person” who had heard Mr. Arthur’s serious allegations might very well have a lower esteem of Arab and Haitian cab drivers.  In fact, Justice Deschamps mentioned that another taxi driver who had heard Mr. Arthur’s comments phoned into the radio show to make similar remarks.

In closing, Justice Deschamps noted that defamation suits were not always the appropriate means of legal recourse in discrimination cases.  In this case, however, it is difficult to imagine what else Mr. Bou Malhab could have done.  There was no contractual relationship between him and Diffusion Métromédia, an intentional tort would have been almost impossible to prove, and Mr. Arthur is certainly not a government actor.  Yet his radio comments may have had a far-reaching audience… and far-reaching consequences as well.

The original newspaper article entitled, “Detective accused of taking bribes from Russian exiles. Police investigating the alleged sale to a security company of intelligence on the Kremlin’s attempts to extradite opponents of President Putin, Michael Gillard reports” resulted in a lawsuit for libel against the newspaper for the print and online publications of the article.

The EWCA overturned the Queen’s Bench decision that held in 2009 that the Times could rely on the Reynolds defence for qualified privilege. This defence was originally established over a decade ago by the House of Lords in another case involving journalists at the Times Newspaper for potentially libelous statements in a political discussion: Reynolds v. Times Newspaper Ltd. [1999] 3 All ER 961 (“Reynolds”). The Reynolds defence allows a journalist to raise this defence by proving qualified privilege based on ten criteria:

1. The seriousness of the allegations
2. The nature of the information and the extent to which the subject matter is a matter of public concern
3. The reliability and motivation of the sources of information
4. The steps taken to verify the information
5. The status of the information
6. The urgency of the matter
7. Whether comment was sought from the claimants
8. Whether the article contains the claimants’ side of the story
9. The tone of the article
10. Other circumstances

After prior judicial affirmation, most notably, by Jameel v. Wall Street Journal Europe [2006] UKHL 44, the application of this test has now come into question as a result of the EWCA decision in Flood. The EWCA in Flood applied the Reynolds defence to conclude that the defendant did not meet each criterion, namely, that “the journalists do not seem to have done much to satisfy themselves that the allegations were true” when they wrote the article. The allegations were “no more than unsubstantiated, unchecked accusations from an unknown source coupled with speculation.” Amid the “serious allegation of crime or professional misconduct” the article ultimately constituted irresponsible journalism. Others suggest the narrowing of the application of the Reynolds defence by raising the standard of journalistic verification.

Equally concerned for its reputation, the Times is now appealing this decision to the UK Supreme Court. The Times application claims that the EWCA misapplied the criteria of the Reynolds defence and that the decision is irreconcilable with other judicial applications of the same test. In response, some commentators lament that “Reynolds is dead,” while the Times wants the UK Supreme Court to settle the issue to bring this case in line with prior UK jurisprudence and to bring back professionalism as a defence to aid journalists in the reporting of sensitive news.

Speaking of reporting sensitive news, Maclean’s “Too Asian” article has come across from recent scrutiny in Canada for “irresponsible” journalism for being “Too Brazen.” As mentioned in a previous edition of Amici Curiae here at The Court, Canada’s national weekly news magazine, Maclean’s Magazine recently published an article expressing concern about Canadian university campuses enrolling a high population of Asian students. It would be interesting to test if hypothetically whether the Maclean’s article would pass all ten criteria of the UK Reynold’s test in the Canadian news context.

Video Footage of G-20 Arrest and Parodic Cartoons Go Viral

The events leading up to Josephs’ lawsuit began this summer during the G-20 Summit in Toronto. At a protester rally, Constable Josephs, nicknamed by online detractors as “Officer Bubbles,” reprimanded a young female protester, 20-year old Courtney Winkels, for blowing bubbles in front of police officers. Following these protests, the video-taped encounter as well as a series of animated cartoons mocking Constable Josephs appeared on YouTube.

This video-taped encounter shows the officer sternly warning the protester that “if the bubble touches me, you’re going to be arrested for assault.” The protester then questioned the officer’s rationale and was subsequently taken into custody later that day by another police officer on a charge of possession of a weapon for a dangerous purpose. A series of 8 animated cartoons created using a free-animation website called “Go!Animate” subsequently surfaced, depicting a police officer named “A. Josephs” who resembled Constable Josephs. These cartoons showed “A. Josephs” arresting various individuals, including cartoon caricatures of Barack Obama and Santa Clause, as well as assaulting a news photographer without cause– all to the sound of humorous funk music playing in the background. The animated cartoon then became subject to anonymous online comments harshly criticizing Constable Josephs.

Constable Josephs alleges that these cartoon videos are “false and devastatingly defamatory,” have subjected him to “ridicule, scandal, and contempt,” and resulted in “threats of physical harm against himself and his family.” He requests remedies including an injunction preventing the defendants from publishing and continuing to publish pictures and statements relating to the “Officer Bubbles” cartoons. YouTube has since removed the animated videos and closed accounts that originally posted them; however, re-postings by other anonymous users of the offending cartoons have since surfaced online.

The Anonymity of Online Commenters

This case harkens back to last year’s online defamation case, Warman v. Wilkins-Fournier, 2009 CanLII 14054 (ON S.C.) (“Warman”) where the Ontario Superior Court of Justice, in analysing public policy, held in favour of disclosure for the plaintiffs to properly litigate against the defendant over freedom of expression. The court in Warman ordered the owners of the offending website to reveal the identities of eight anonymous online commenters, which could be the same result here in Josephs v. YouTube.

This case has sparked debate from two camps. Some argue entitlement to freedom of expression that we are all guaranteed under Section 2(b) of the Charter and which the cartoons as parodies or satires of a political event are protected forms of expression. The defendants are likely to celebrate the free-flow of information especially for political speech in a medium that hosts real-time debate. Internet dialogue is unlike traditional print and broadcast media— the latter often requiring passing higher gate-keeping standards and access to expensive production facilities for mass dissemination. On the other side, despite a potential for “libel chill,” the plaintiff is concerned that unlimited freedom of speech, particularly on the internet where moderation is applied sparingly, could open a floodgate. Cases like Josephs v. YouTube and Warman involve plaintiffs and their supporters calling for reasonable limits by anonymous online commenters who are viewed as playing too close or crossing over the legal line into defamation while hiding behind a veil of anonymity.

Online defamation is a relatively recent phenomenon; defendants are increasingly litigated for defamation occurring on message boards, blogs, websites and other internet platforms. In my view, traditional laws of defamation are mistakenly applied to online postings by categorizing internet speech alongside print and broadcast mediums. The correct approach for internet defamation should be evaluated on a case-by-case basis. The standard for internet defamation should be lower until a plaintiff can prove quantifiable injury (such as malice) beyond the scope of the trivial or fair criticism. While preventative measures such as online commenting policies and “net-etiquette” reduces the likelihood of injury, unlike other mediums, issues of publication, republication, jurisdiction and dissemination are multiplied by the breadth, speed, and anonymity of the internet. Unfortunately, unbridled enthusiasm (or criticism) can result in online defamation that is increasingly litigated in courts to identify the faces behind anonymous internet-users before damages for defamation can be attributed. Litigation also risks silencing voices that normally are unheard, uncensored expressions while attempting to balance individual reputational rights. Whatever your views on online defamation, please share your reasonable comments with us.