June 6, 2022
We have written before about Ontario’s law regarding strategic lawsuits against public participation. Under this “anti-SLAPP law”, claims which appear not to have substantial merit or to have been brought simply to discourage debate regarding matters of public interest can be summarily dismissed under a simplified process.
It is not surprising that the need for anti-SLAPP legislation became increasingly apparent as social media grew in popularity. Internet defamation has become a hot topic.
In the view of at least one Ontario judge, Twitter is “not thought of as a medium for serious political debate”.
He also says that tweets are not broadcast as serious comments but as an effort to draw attention to oneself.
Twitter, in his view, is a harsh environment whose very harshness reduces the seriousness with which it is taken. If this view is common among judges, that will make it more difficult for plaintiffs to recover for defamation on Twitter.
In Mondal v. Evans-Bitten, the claim arose after the Defendants posted screenshots and retweets of the Plaintiff’s own tweets with added messages, such as that members of the LGBTQ community were forced to use other services because the Plaintiff’s service is “owned and led by a man who thinks and tweets this stuff.”
The “stuff” referred to in the Plaintiff’s own tweets were comments that the judge describes as entirely crass and unprofessional language and exposing a derogatory attitude towards LGBTQ individuals. Other tweets by the Plaintiff were derogatory toward the Prime Minister and the Mayor of Toronto.
The Defendants’ tweets meet the test for being a recognizable allegation of defamation – the Defendants’ retweeting and forwarding might lower the plaintiff’s reputation among reasonable people in his professional and business network.
So, the Plaintiff’s claim is not entirely without merit.
The Defendants’ tweets were found to be matters of public interest not only because they reproduced the Plaintiff’s references to high profile politicians but because the comments by the Defendants could be viewed as a public service in that they warned members of the community that they may encounter adversity if they used the Plaintiff’s services.
As the judge says, whether or not this is an accurate description of the Plaintiff’s business, it is a matter of interest to the public.
That means that the judge may dismiss the action if there appears to be a valid defence. Just as with the Plaintiff’s claim, this does not mean that the defence has to be proven on a balance of probabilities. It merely has to be strong enough for the judge to decide that the public interest in free speech justifies dismissal.
In this case, the judge considers the defence of fair comment. Usually, that is a very technical defence which is hard to prove. However, this judge had no sympathy for this Plaintiff.
In his view, nothing the Defendants had posted was harsher than what the Plaintiff had already tweeted. Although malice is a factor that would make the fair comment defence unavailable, as the judge points out “a stark difference in political views does not make commentary malicious”.
Therefore, he has no problem concluding:
Mr. Mondal jumped into the turbulent river of Twitter commentary with some vulgarly worded observations that touched a nerve with the Defendants. He got it back as good as he gave it, and got wet in the process. In the context of Twitter, there is every reason to believe that what Ms. Evans-Bitten, Mr. Kirkconnell, and Ms. Smith doled back to him was fair comment.
The action was dismissed.
Not only is this judgment colourful and entertaining, it confirms that how the courts are viewing internet defamation and SLAPP motions is continually evolving. On the one hand, internet defamation may be taken very seriously where the context makes the remarks damaging to the Plaintiff and the Plaintiff has the moral high ground. However, the public interest in vigorous debate seems to be what social media is made for. That, and GIFs of cats.
The litigation team at Weiler’s Law has significant experience in all aspects of defamation, including internet defamation. Because defamation lawsuits are always expensive and unpleasant, a successful SLAPP motion is an increasingly common outcome. Our experience may help you assess your position. If you believe that you have been defamed, or are facing a claim that you committed defamation, we may be the right lawyers for you.