Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek and Christie Dewar
Durand v Higgins, 2024 ABKB 108
Liability for Defamatory statements re-posted on social media
The Plaintiff, an electronic music artist from Quebec publishing under the name “Snails” sued the Defendant, who operated an Instagram account called “@evidenceagainstsnails” for “reposting allegations of serious sexual impropriety against him”. The operator of the account, who was based in California, had no first hand knowledge of the allegations. The Plaintiff alleged that the unsubstantiated allegations destroyed his career. He sought an injunction and summary judgment on the basis that revenues fell from just under $3 Million in 2018 to a net loss position from 2020 through 2022 during the time frame that the account was active. The account had 1427 followers. The Court noted the following:
[11] All the material posted on the Instagram Account was second or third-hand, consisting of reposts, which themselves sometimes linked material from elsewhere on social media. All the material was aimed at branding Mr. Durand a criminal and sexual predator who engaged in sexual misconduct ranging from non-consensual intercourse to unwanted advances, including towards minors. An obvious collateral purpose of the Instagram Account was to “cancel” Mr. Durand, frequently tagging his agent, producers, and venues where he was to perform.
The Court considered whether Alberta had jurisdiction, and noted that Defamation through social media is deemed to occur where the statements are read:
[23] In this case, the only operational presumptive factor would be the commission of the tort in Alberta. Defamation through social media posts is deemed to take place where the defamatory statements are read, accessed, or downloaded by the individuals to whom they are published: Haaretz at para 36.
In this case the Plaintiff was able to establish that a concert was cancelled in Alberta following a review of the posts.
The Court went on to discuss liability for reposting defamatory statements on the internet and confirmed that the party that reposts defamatory statements is just as liable as the original poster, unless it is clear that the statement is not adopted by the re-poster:
[70] There appears to exist a common misconception amongst social media users that reposting defamatory content generated by others is a protected activity, under the doctrine of fair comment or otherwise. This misunderstanding should be corrected as firmly as possible. A repetition, republication, or repost of a defamatory statement is every bit as defamatory, and every bit as subject to liability in tort, as the original statement. “No one is justified in stating false facts about another merely because someone else has done so”: Vanderkooy v Vanderkooy et al, 2013 ONSC 4796 at para 157.
[71] The “repetition rule” in common law holds that every person who repeats a defamatory statement is liable to the same extent as the person who originally published it: Grant at paras 76, 114, 119; Peter A. Downard, The Law of Libel in Canada, 5th ed (Toronto: LexisNexis Canada, 2022) at § 5.05; see also Warman v Veck, 2015 ONSC 4860 at para 29. Further, the Supreme Court has observed that “[m]aintaining the repetition rule is particularly important in the age of the Internet, when defamatory material can spread from one website to another at great speed”: Grant at para 119.
[72] An exception to the repetition rule is known as “reportage”. Reportage is a type of responsible communication and refers to “defamatory statements clearly attributed to someone other than, and not adopted by, the defendant”: Grant at para 76; see also Downard at § 10.09. Under this doctrine, statements may be repeated if they are fairly reported and public interest lies not in the truth of their contents, but rather in the mere fact that they were made:
If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided: (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made.
[Grant at para 120]
In terms of damages, the Court acknowledged that some of the Plaintiff’s losses would have been impacted by COVID in any event.
The Court awarded special damages in the amount of $1 Million on the following basis:
[151] When it is impossible to quantify precisely where the impact of tortious conduct ended and other loss causes took over, the Court must draw a line at the point up to which it is fully satisfied, on the civil standard of proof, that the harm is attributable to the tortfeasor’s actions. Considering the entirety of the evidence before me, and in particular to temporal links between the Instagram Account’s campaign against Mr. Durand and the loss of professional opportunities and associations he suffered, I have no difficulty concluding that Ms. Higgins’ actions have had a seven-figure impact on Mr. Durand’s career, and I award special damages in the amount of $1 million.
Given the severity of the allegations including the obvious malice behind them, General damages of $350,000 and aggravated damages of $150,000 were also awarded:
[164] In total, the extent, severity, malice, intent, and impact of the defamation evidenced in this case satisfies me that Mr. Durand is entitled to $500,000 in general and aggravated damages. I would apportion those as $350,000 and $150,000, respectively. These figures take into account the significant pecuniary award already made and address the non-pecuniary harms suffered by Mr. Durand, together with the likely future personal impact of these libels. This figure is on par with the amount awarded in Soliman, which I find to be a helpful comparator, and much less than what the Supreme Court affirmed in Hill. The defamation in this case is worse than that found in Soliman, but the separate compensation for the financial impact here would make a higher award of non-pecuniary damages disproportionate.