For business owners, negative online reviews can turn potential customers away. Most of these reviews are innocent free expression, where those people who have had bad experiences with the business provide their “rating” and a true description of those experiences. However, sometimes the reviewer crosses the line from free expression into defamatory speech.
When does free expression become defamation, and what legal recourse do business owners have to combat the reputational harm that defamation causes? Can they proceed to civil litigation?
Recently, the Ontario Superior Court of Justice granted Walker Law’s client an injunction to stop anonymous online defamation. We asked the Court for an urgent, ex parte injunction. In general, an injunction is an order from the Court that either makes a person stop doing something or compels them to do something. An ex parte (pronounced, “Ex PAR-tay”) injunction is an injunction that is brought to the court without notice to the other side; “ex parte” is a Latin phrase which means, roughly, “coming from one side”. The anonymous social media accounts were defaming our client’s business, owner, and family members. In that case, the social media account posted false statements, which included claiming that our client’s owner was a criminal. The injunctive relief that our client received forced the anonymous social media accounts and posts to be taken down.
Tanya Walker, an experienced litigation lawyer and Managing Partner at Walker Law, spoke on CTV about an anti-SLAPP (anti-Strategic Lawsuit Against Public Participation) case, where individuals that posted negative online reviews were sued by the company for defamation. They successfully received a court order for that lawsuit to be thrown out.
When does an online review or feedback cross into the territory of defamation?
A statement is defamatory if:
- The statement is about the person complaining about the statement (the “plaintiff”);
- If a reasonable person heard or read the statement, it would lower their opinion of the plaintiff, or it would lower the plaintiff’s reputation with that person; and
- The statement is communicated to at least one person other than the plaintiff.
When a plaintiff proves these three elements, the law presumes that the statement is both false and causes damage. The plaintiff does not need to show that the defendant meant to cause harm, or even that the defendant was careless.
Although this description of defamation is quite broad, there is a common defence to a claim of defamation: the statement is substantially true, which is known as the defence of justification.
There are several other defences, too, but most of them boil down to the question of whether or not the statement was substantially true. Some defences to defamation can also be seen as “journalistic” defences, such as when a reporter publishes something defamatory about
someone, but they were responsible in trying to report on a matter of public interest, and they were diligent in allowing the defamed person to voice their ‘side of the story’.
Most statements which meet the above description would stop here because people often say substantially true things that would lower another person’s reputation.
For example, take a hypothetical negative online review of a restaurant, which says that the restaurant’s bathroom is unclean. This meets the elements set out above for a defamatory statement. However, if the restaurant’s bathroom is, in fact, unclean, or was unclean when the reviewer was in it, then it is likely that the person’s statement was substantially true.
The Supreme Court of Canada has said that once the plaintiff in a defamation case proves the above elements, the defendant has to advance a defence to avoid being held liable for the defamation.
Conclusion
There are several defences to the tort of defamation, and any court’s analysis of a defamation lawsuit will depend on the facts of the situation. Although negative reviews can seriously impact your business, it is important to know that where there is truth to the claims made in the review(s), the reviewers will likely have a strong defence of fair comment. To determine when speech crosses the line from free expression to defamation, courts will weigh the facts and the context. However, courts will typically not permit defamatory speech that is motivated by revenge unless the statements are “substantially true”.
In the case that Tanya Walker discussed on CTV, the defendants proved the posts were likely true because the business failed to give any evidence proving that the problems the customers complained about online were pre-existing construction problems, rather than problems caused by them and/or their products.
If a customer posts about you and/or your business and you want to sue for defamation, or have these posts taken down, be prepared to produce ample evidence to demonstrate that what was posted is clearly untrue.
If you are planning on posting a negative review online, please make sure that your comments are not based on rumours, that you are being truthful and not malicious, and do not assume that using an alias or pseudonym makes you anonymous.
Should you have any questions relating to possible defamation, or any other legal questions, please do not hesitate to reach out to one of Walker Law’s experienced litigation lawyers.
Tags: Civil Litigation Law, Injunctions