Say What: The Online Defamation Age and Rise of Social Media

With the meteoric rise of TikTok, Instagram, Twitch and other online platforms, defamation and issues that arise from online posts is at an all-time high. According to the Supreme Court of Canada in Grant v. Torstar Corp.,2009 SCC 61, a plaintiff (the person defamed) must satisfy three elements:

  1. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
  2. The words referred to the plaintiff; and
  3. The words were published, meaning that they were communicated to at least one person other than the plaintiff

When all three of these elements are proven, there is a presumption that the words are false and that they caused the plaintiff harm.

What happens next? Once defamation is established, the defendant has several possible defences at their disposal, including justification (the words were substantially true), privilege (the statement was made in a protected context), fair comment (up for public debate) and responsible communication (for the public interest).

However, you should also be aware that the Supreme Court of Canada in Crookes v Newton, [2011] SCC 47 determined that merely referencing an article containing defamatory comment without repetition of the comment itself should not be found as defamatory. The Court held that for a defendant to be liable, they must have repeated the defamatory content in some manner.

If you face defamatory comments against you, be sure to remember your rights and the test outlined in Grant v Torstar Corp.

Have you been impacted? Do you have questions about your situation? Contact Darren Frank, Associate Lawyer at Lockyer + Hein LLP to learn more: / 905.798.7489

Darren Frank – Associate Lawyer


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