Fighting Online Defamation in Canada: Top 3 Things You Can Do Without Going to Court for Combatting the Really Horrible Terrible Things People Say on the Internet

He’s a real ___________, his actions show him to be __________, his wife and children are _____________. He’s a _____, a ______ and definitely a ________. His morals and ethics are ________. If you’re thinking of doing business with his company __________, you should be aware of _________. Don’t believe me? I can give you lots of names of others who will back me up. I can’t tell you everything here. Send me a private message and I’ll give you the full scoop!

As posted by A(ngry)W(riter) on (pick your favourite social media).

Sound familiar?

That people say terrible, malicious, untruthful things about other people is nothing new. That they may now have an easy audience of millions rather than dozens for their spiteful attacks has only happened since the rise of online social media that lifted the rants of the misguided out of the dark corners of society.

We’ll peg the dawn of the new defamation age as 26 September 2006 - the date Facebook went fully public. 

Why’s the Internet So Nasty?

Is it just the ease of the Enter key push that makes people so damned nasty on the Internet? Or is there something deeper at work in the psyche? 

Cited a mere 2775 (!) times, an academic paper published by psychologist Dr. John Suler argues Internet disinhibition really is a thing: “The disinhibition effect can then be understood as the person shifting, while online, to an intrapsychic constellation that may be, in varying degrees, dissociated from the in-person constellation, with inhibiting guilt, anxiety, and related affects as features of the in-person self but not as part of that online self” (John Suler, “The Online Disinhibition Effect” 7 CyberPsychology and Behaviour No. 3, 2004). Even if Dr. Suler’s language is a little heavy going, his fundamental conclusion that people really do let it all out online has profound implications for just how nasty, abusive, and hateful some commentary can get. 

How are Defamation, Libel and Slander Defined?

The definition of defamation (under which both libel and slander fall) couldn’t be simpler: “A false written or oral statement that damages another’s reputation” (Black’s Law Dictionary, 10th ed). Libel involves a permanent record, whereas for slander there’s no recording. Thus the difference between the two terms in the always recorded electronic age isn’t the usually assumed to be written versus spoken message. But practically there isn’t much difference between them in terms of what can be done, since legally it’s all defamation. 

So if you run a restaurant, and someone who actually ate there leaves you a bad review about the food, that isn’t defamation. If someone who never ate there calls you a Nazi who won’t serve blacks, that’s another story. 

Top 3 Things You Can Do About Online Defamation Without Going to Court

I’m often consulted by potential clients who have fallen victim to social media weaponization - either through others posting attacks against them, or their being attacked over their sometimes pretty innocuous comments about others. Here’s my top three tips I give them on dealing with it short of going to court, derived from my own legal practice helping people with exactly these kinds of problems. 

1. Write Your Own Takedown Demand Letter to Poster & Service Providers

I find it’s hard to gauge in advance people’s reactions to being called to account in writing. Some will go down fighting to the bitter end no matter how many written demands are presented to them. But others will crumple like Kleenex, even if not admitting they’re wrong. So don’t assume the direct approach is a total waste of time. 

I’ve had entire websites taken down as a result of a single letter from me. At other times, major Internet service providers have yanked posts I objected to without blinking a cursor at my request.

Yes, a letter from a lawyer might enhance the potential for results (see action tip #2 below). But I maintain it’s more what you say than who is saying it that leads to results.

The key points are:

  • write a coherent letter to both the offensive poster and the service provider hosting the content;

  • lead by reaffirming your support for principles of free speech, and that you’ve very carefully considered the merits of the content of the offensive post prior to sending the letter;

  • explain carefully and in detail what is offensive about the post, why it goes beyond the boundaries of free speech, how it affects you personally, and why it’s their duty to take it down (get specific here, not just that you don’t like it or disagree with it);

  • explain exactly what you require to be done and by when (“require” is a good word, rather than “request” - it’s mandatory, but more polite than “demand,” nobody likes demands);

  • ask for the least possible remedy - usually just removing the post - don’t ask for an apology, or for damages, as you’re unlikely to voluntarily get anything that requires real effort;

  • politely explain the consequences of non-compliance: reporting to government, retaining legal counsel, starting a court action - don’t make hollow threats, as they’ll undercut the force of the rest of the letter, only mention things you actually have the means to do, even if you ultimately might not do them;

  • put this into a real paper letter you mail to a real address, which should be possible at least for the Internet service provider, and also email, direct message and fax the letter.

As you want to ensure the defamatory poster hears your comments, it might take some digging to find out contact details. But even if the direct approach to the poster proves fruitless, I’ve found that a paper letter directly to the service provider can work wonders, perhaps because they get so few of them. There’s usually a physical mailing address hidden deep in their “about us” pages.

2. Hire a Lawyer to Write a Takedown Demand Letter

Lawyer letters occasionally have the effect of scaring people a lot more than letters from ordinary citizens. Truth be told, they have no magical powers. And some people will just ignore them anyway. But if you have the money, they might lend more power to online defamation action tip #1 above.

I always tell my clients that lawyers can be a bargain so long as you keep them out of court. As soon as they are in court, costs can soar because of the amount of time that is burned through preparation and attendance at multiple court hearings. Letters don’t burn that kind of time. However don’t expect a lawyer to be able to knock off a powerful letter in 30 minutes, since it usually takes longer than that just to understand the issues, more time to develop a strategy, and yet more to produce polished prose which the client has been able to offer input to prior to sending.

My own online demand letters simply follow the principles I’ve already set out for you above, however lawyers are paid to write for a living so you could get a more finished and persuasive demand letter product than through the DIY route. And you’ll have the lawyer “push.”

But if you hire me to help with your written takedown demand, don’t expect me to put “DO GOVERN YOURSELF ACCORDINGLY” in bold caps at the bottom of the letter. See my article “How to Write Like a Lawyer, & Why You Never, Never, Ever Want to Do That, Even if You’re a Lawyer” for an explanation of why I don’t do that.

3. Make a Complaint to the Police

Criminal libel is actually a thing at ss. 297 to 317 of the Criminal Code. But prosecutions are rare, and parts of those sections have been struck down as unconstitutional in some provinces.

The better ground of complaint is criminal harassment, which only requires “threatening conduct,” not the specific threats of bodily harm or death which the Criminal Code charge of threats requires. Harassment remains a bit difficult to define under Canadian law, but even if the police aren’t willing to lay a charge because of uncertain evidence of intent, they might be willing to contact the poster or service provider to express your concerns. And when the police call I find people tend to pay even more attention than when a lawyer sends a letter.

So rest assured, you’ve got effective options short of going to court. I know the possibly perceived power of a court action might be appealing, but I find that once court action starts you’re less likely to get the other party to voluntarily do anything you ask. Whereas with a proper letter, I’ve seen some amazing results.

Gordon S. Campbell is a trial and appellate civil litigation lawyer practicing throughout Ontario, who has appeared on cases as high as the Supreme Court of Canada. Learn more at acmlawfirm.ca