The internet has undoubtedly been one of the most significant drivers of economic growth in recent history. We are now able to do business around the world without having to leave our desk can share our ideas more broadly than ever before.
At the same time, the internet has also become vulnerable to abuse. Individuals and businesses can now make unfounded and negative statements about others with very few checks and balances. Those statements, once posted online, can be seen by anyone with an internet connection.
For individuals and businesses who are not regularly in the public eye, these negative statements can have a significant impact on their ability to operate and can have devastating and irreparable impacts on their reputations.
The shortcomings of the law of defamation
Historically, a party who suffered damages as a result of an untrue statement would likely have claim in defamation. In order to prove that the words complained of are defamatory, a plaintiff must show: (a) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (b) that the words in fact referred to the plaintiff; and (c) that the words were published, meaning that they were communicated to at least one person other than the plaintiffs. Where a plaintiff proves that the words complained are defamatory, one of the defences available to a defendant would be to prove that the statements were true or substantially true (which is known as the defence of justification).
However, for a party who is the victim of these types of statements, the fact that they may have a claim in defamation is of little comfort. Pursuing a claim for defamation to trial will likely take several years and can only be done at a significant cost. In addition, the injured party may be left with a judgment for damages that cannot be enforced because the author of the statements has no exigble assets or cannot be located.
During that time, the published statements would continue to stay online and cause harm unless the injured party can obtain an injunction removing the statements from the internet and restraining the defendants from making further defamatory statements.
The problem is that obtaining such an injunction is very difficult. In the context of a defamation claim, the Court does not apply the traditional RJR-Macdonald test for an interlocutory injunction. Rather, a plaintiff seeking an injunction must satisfy the following criteria: (1) the publication must be clearly defamatory; (2) if the defendant states an intention to justify or to rely on fair comment, the injunction must be refused unless it is clear that any such defence will inevitably fail; and (3) the plaintiff must establish irreparable harm if the injunction is refused (Bagwalla v Ronin 2017 ONSC 6693 para 19).
The rationale behind such a stringent test is that the courts are extremely reluctant to restrain someone’s freedom of speech without there having been a trial. However, the test for an interlocutory injunction, as it is currently framed, places an extremely high burden on the plaintiff without any regard for the type of speech that is impugned or the extent of the harm that is being caused. It treats all speech as being equally valuable when that simply is not the case in the current environment where people are willing to publish untrue and misleading statements online with the motive of causing harm.
A new possible approach: the tort of online harassment
The recent decision of the Honourable Justice Myers in 385277 Ontario Ltd. v Gold (2021 ONSC 4717) may offer plaintiffs a new argument for obtaining an interlocutory injunction in situations where someone is the victim of online statements. In this case, Justice Myers slightly expanded the test for the tort of harassment and, in granting an injunction, found that there was a serious issue to be tried that the impugned conduct constituted online harassment.
In this case, the defendants leased a farm property from the plaintiff. The parties agreed to terminate the lease but, after the pandemic shutdown in March of 2020, the defendants remained on the property without paying rent. After the dispute between the parties began, the defendants began posting videos on Youtube to comment on their issues with the property and the plaintiff. Some of the comments included that the plaintiff was a liar and that he had misled the defendants, the police and the justice system. The videos also included numerous threats against the plaintiff if he did not settle their dispute.
The plaintiff sought an injunction restraining the defendants on the grounds that their conduct was defamatory and constituted online harassment.
Justice Myers noted that the test for an interlocutory injunction restraining defamatory conduct was stringent and determined that it would be very difficult for His Honour to tease out from the defendants’ numerous videos the precise words that may be defamatory that cannot possibly fall within the defence of justification or fair comment.
However, Justice Myers noted the defendants had set out on a campaign to harass and intimidate the plaintiff. His Honour noted that the current law is not always adequate to deal with internet harassment, given the particular threat that internet harassment poses to a person’s reputation and well-being.
Justice Myers recognized that it is unlawful harassment to use the internet in a manner that is outrageous in character, duration and extreme in degree, with the intent to coerce behaviour by causing fear, anxiety, emotional upset, or impugning the dignity of the plaintiff online (emphasis added). In so doing, Justice Myers slightly expanded the type of conduct that could meet the test for the tort of harassment recognized in the recent case of Caplan v Atas (2021 ONSC 670).
Having surveyed the law of online harassment, Justice Myers found that this was a proper case for an interlocutory injunction. His Honour held that there are serious issues to be tried for the unlawful threats, defamation and online harassment torts pleaded although His Honour held that interlocutory relief was not being granted for defamation per se as it was unnecessary in the face of the relief being granted for unlawful threats and online harassment.
Justice Myers then went on to apply the other two parts of the RJR-MacDonald test – whether the plaintiff would suffer irreparable harm and whether the balance of convenience favoured the plaintiff.
The Gold decision offers a less onerous path to obtaining an interlocutory injunction in response to online defamation. Where a plaintiff can show that the online defamation also constitutes online harassment, a plaintiff will not necessarily have to meet the stringent test set out Bagwalla and can rely on the traditional RJR-MacDonald test. This could have the effect of making these injunctions more viable going forward.
However, this decision is only an incremental development. It will only be useful to those who are the victim of defamatory conduct that is so outlandish that it could also constitute harassment. This would likely require repeated and ongoing statements being published as to opposed to a single statement posted online.
However, the law of defamation and specifically the test for an interlocutory injunction in the context of defamation have to develop to better address the way in which the internet is currently being used. In the context of Anti-Slapp motions, judges are starting to recognize that freedom of speech does not necessarily have an intrinsic value in every case (see for example Levant v Day, 2019 ONCA 244 at paras 22-23). The reality is that there is little to no public interest in deliberate falsehoods and personal attacks because such statements do not advance the traditional goals of free speech.
The current test for an interlocutory injunction in the context of defamation does not allow the court to weigh the benefit served by the impugned statements against the harm that the statements are causing. It assumes that the impugned statements have intrinsic value no matter what the content is. As long as that is the case, an interlocutory injunction will only be a viable option in the most egregious of cases.