By: Kristi J. Collins
Most businesses today have an online presence. They host a website, tag it on Google, and may market using social media such as Facebook or Twitter. The expanded exposure is expected to increase business.
With broad exposure, however, also comes the increased threat of bad reviews derailing a business. For whatever reason, online reviewers often feel particularly emboldened to post scathing critiques or allegations of wrongdoing in a way they might not do in person. Such reviews then go out to a broad audience who often seem receptive to accepting such allegations at face value and sharing them with others. Businesses are increasingly fielding online allegations which they view as false, exaggerated, unjust and/or malicious.
So what are businesses to do when faced with negative online statements? A common initial response is to want to pursue legal action for defamation. The courts in Ontario have been clear that Facebook or other online posts are not immune from liability. Still, businesses should be aware that a defamation suit is not always the answer, and in some cases might make their situation worse.
What is Defamation?
A statement is defamatory if it: (i) is communicated to at least one third party, (ii) clearly refers to the offended person or business, and (iii) would tend to lower the reputation of that person/business in the eyes of a reasonable person. If the defamatory statement is in writing (like an online post), it is called “libel”; if it is communicated verbally, it is “slander”. If one or more of the three elements above is not satisfied, there is no defamation.
How is Liability Determined?
Defamation cases are unique because often the plaintiff’s burden of proving the three elements of defamation is easily met. The bulk of the case then focuses on the defendant trying to prove at least one of a number of defences available at law. One common defence to defamation is “justification” or “truth”. That is, if the defendant proves his allegations are true, then he is not liable. This is very important for businesses to understand when considering bringing a defamation claim, as they would be effectively inviting the defendant to publicly try to prove the truth of his allegations in court. Other defences include fair comment, reasonable communication on matters of public interest, and privilege. Generally speaking, the more the subject is about a matter of public interest, the more protections there are.
If defamation is proven and there is no valid defence, the court presumes that the plaintiff has suffered some amount of damages without having to prove a loss. Depending on the facts, damages awarded can sometimes be as low as a few hundred dollars. Usually, if the plaintiff can prove it suffered significant financial loss as a result of the defamation, this would support a higher award of damages.
Some businesses just want to obtain a court order that the offending statement be taken down. Such a claim must be brought in regular court (not small claims court), and therefore could involve significant costs.
Businesses should also be aware of the unique deadlines for pursuing a defamation claim under Ontario’s Libel and Slander Act. Within six weeks of discovering a defamatory publication, the defamed party must serve a Notice of Libel on the defaming party. This Notice must contain certain details and must afford the offender an opportunity to retract their post. If they do retract their post, that usually ends the matter. Within three months of discovering the defamatory publication, the defamed party must file the defamation claim with the court. If you miss these deadlines, your claim may be out of time.
Every new publication of a defamatory statement triggers relief under the Act. So, if a person re-posts the same statement at a later date, that later date can be the starting point for the deadlines discussed. A person can also be held liable for defamation just for sharing or reproducing someone else’s defamatory statement, although the extent of that liability and possible defences will depend on the facts of the case.
Risk of Escalation
Businesses should be aware that pursuing legal action might have the opposite effect than intended: it might trigger the offender to ramp up their offensive statements or to publicly defend themselves or accuse the business of “attacking them”, with the result that one bad review snowballs into extended bad publicity for the business. For this reason, businesses may also want to seek out the advice of a public relations expert to consider alternatives to legal action.
In conclusion, when faced with defamatory statements, businesses should immediately consider how best to respond, mindful of the applicable deadlines and costs and risks associated with bringing a defamation claim. While nobody likes to receive bad reviews, rushing into a defamation claim may not be the right solution in every circumstance.
Kristi Collins is an Associate lawyer at Lancaster, Brooks & Welch LLP in St Catharines, ON. Her areas of practice include civil and business litigation as well as a focus on estate litigation. She may be reached at 905-641-1551.