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Defamation with the Click of a Mouse: Assessing Damages
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By Richard Stobbe

In the midst of a challenging period for a condominium owners association in a property located in Costa Rica, the president of the association resigned in frustration. Someone had overheard a rumour that the president resigned because he had been accused of theft. This rumour was false and when it was repeated by email – an email sent by means of the trusty ‘reply-all’ feature – all 37 condo owners were copied with the defamatory rumours.

An Ontario court recently rendered a decision in this email defamation case (McNairn v Murphy, 2017 ONSC 1678 (CanLII)), noting that the defamation occurred in ‘cyberspace’: “Communications via the Internet such as email, are potentially more pervasive than other forms of communication since control over its distribution is lost in numerous people may have access to it [and an] email containing a defamatory statement may be sent by [a] recipient to others who in turn may send it to an even larger audience. The Internet has the extraordinary capacity to replicate a defamatory statement, in [its] sleep. As a result, the mode in extent of publication, is [a] particularly significant consideration in assessing general damages [in]Internet defamation cases.”

In awarding damages of $160,000 against two defendants, the court noted that damages in defamation cases are assumed if publication of defamatory statements is evidenced, assuming there are no defences. The defamed individual need not show any specific loss. General damages in defamation cases can serve three functions:

(a) to console the plaintiff for the distress suffered in the publication of the defence;

(b) to repair the harm to the plaintiff's reputation including, where relevant, business reputation; and

(c) to vindicate the plaintiff's reputation.

The court applied the following six factors in determining general damages in defamation cases:

1. the plaintiff's position and standing;

2. the nature and seriousness of the defamatory statements;

3. the mode or type of publication;

4. the absence or refusal to retract or apologize for the statements;

5. the conduct and motive of the defendant; and

6. the presence of aggravating or mitigating circumstances.

Defamation by means of mouse click is easy to do.

And, it should be noted, it’s not that difficult to make a full retraction and apology by the click of a mouse, particularly in a small community of 37 individuals. From the facts available in this case, an unreserved retraction and sincere apology may have been worth $160,000.

Calgary – 07:00 MT

Authors
,Lawyer, Trademark Agent, CLP
rstobbe@fieldlaw.com