B.C. lawyer talks defamation during the municipal election

A cautionary tale of the risk of libel when people vent on social media

When Invermere Mayor Gerry Taft spouted off online about an animal rights activist, he couldn’t possibly have imagined the price he’d pay.

By the time it was all over, Taft figures it to be about a $125,000 blunder.

“At the time, the whole thing seemed kind of ridiculous,” Taft told the Columbia Valley Pioneer in June. “I never thought it would go this far and I never thought it would get this expensive.”

Taft learned a lesson that Chilliwack lawyer Brian Vickers thinks should serve as a cautionary tale for anyone venting on social media particularly as tensions rise during the current municipal election in B.C.

Vickers, who works with Baker Newby, focuses on defamation cases such as libel and slander.

“A lot of people don’t know how rough it can be if you go posting on Facebook,” Vickers said in an interview this week. “Especially if you have assets.”

Taft’s mistake? During a heated public debate in 2015 over what to do with a growing nuisance deer population in the East Kootenay towns, the City of Cranbrook started a deer cull.

Devin Kazakoff, who is one of seven directors at large of the British Columbia Deer Protection Society (BCDPS), opposed the cull. He pleaded guilty to destroying two net clover deer traps, and he was handed a conditional discharge, the conditions of which he carried out meaning he was not convicted of a crime nor did he have a criminal record.

But in the comment section in an online news website under a story based on a press release from the BCDPS, Taft posted, in part: “I wouldn’t be so quick to believe convicted felons who have extreme positions on animal rights issues and who do not respect the decisions of democratically elected local governments doing what the majority of their constituents want.”

And by calling Kazakoff a convicted felon, when he was not, Taft committed libel. He was ordered to pay $75,000 in damages, an amount that was reduced to $35,000 after appeal. On top of legal fees and other costs, Taft figures his bill to be about $125,000.

So how common are defamation lawsuits?

“They arise a lot more this time of the year,” Vickers said. “I really wouldn’t be surprised if something comes up.”

For those with something or someone to complain about, social media is often the first place they go. And thanks to freedom of expression, it’s mostly fair game. Vickers explains that defamation at its heart is the play between that freedom of expression and the right of an individual not to be defamed.

“Defamation is the act of publishing a statement that has the effect of lowering or ruining the reputation of an individual in the eyes of a reasonable person,” Vickers wrote in a Baker Newby blog post on the subject.

And while the Kazakoff v. Taft case explores the considerable danger in repeating a defamatory error, Vickers explains that a person can be held liable on social media not only for defamatory statements but also for defamatory comments made after.

In the case of Pritchard v Van Nes, the B.C. Supreme Court found a defendant liable for $67,000 for comments that she described as “venting” on Facebook. In a nutshell, the two were neighbours and had an acrimonious relationship that ended with the defendant accusing the plaintiff of being a “creep” and using cameras on her family 24 hours a day.

The problem was that this wasn’t true, and it led to her Facebook friends taking action, leading to out-of-control comments leading to the complete destruction of the “stellar reputation” of the plaintiff as a respected music teacher.

“The result is a cautionary tale to those who use social media platforms such as Facebook and Twitter to, as the old idiom goes, ‘air out their dirty laundry,’” Vickers wrote.

A defamation suit has three steps to it. First, a person who alleges libel has to prove a statement was published and was about them. The second step switches the onus to the other party who needs to prove the statementes were true or otherwise justified or protected by privilege.

The most extreme kind of privilege is absolute, rarely used as it would only be a defence in the case of a witness in a courtroom or a politician in Parliament.

More common defences include qualified privilege, and more common still: fair comment. Fair comment is complicated, but essentially it involves making statements of opinion about someone that is based on some facts.

After a case of defamation has been made out, as in a statement published about an individual would have tended to lower someone’s reputation, then the onus shifts back to the plaintiff to prove the actual malice occurred. If the malice occurred, it will defeat the defences of qualified privilege or fair comment. Justification or truth, however, cannot be defeated by actual malice.

When the tests are examined closely, it’s clear to see that defamation happens all the time on social media.

“I get a couple of people a week regarding defamation,” Vickers said. “The problem with defamation is that anyone behind a keyboard can spread a comment anonymously, so you run up against real practical boundaries that someone might not exist.”

The other simple practical consideration is that the person defaming might have no money or assets. Vickers gives the example of a father suing his daughter for calling him a pedophile.

“She was a troubled girl who was suspected to have some drug-related issues, so there was no ability to collect a penny,” Vickers said. “But so severe is a pedophile allegation that he just had to clear his name.”

Indeed, the pedophile allegation is the worst. So what types of awards are given for such terrible libel?

“To be called a pedophile, which is the worst thing confirmed by the courts, you are looking at $50,000 to $75,000.”

That dollar figure can rise higher if there aggravated damages, punitive damages and if there is a loss of business revenue.

So what advice does Vickers have for candidates and their teams regarding controversial social media posts?

“Be very careful. Only report things with facts that they can verify, and make sure those facts are put out on whatever they are saying…. Even the defence of fair comment is not available to a comment based on facts that are untrue or misstated.”

As Mayor Gerry Taft learned all too well, much to his expensive regret.

• RELATED: B.C. bride ordered to pay $115,000 after defaming photographer online

• RELATED: The truth about online vigilante group Creep Catchers: Part One


@PeeJayAitch
paul.henderson@theprogress.com

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