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On the internet, anyone can make written statements that may potentially be viewed by a large audience. From Facebook posts, to Tweets, to Google reviews, there are many opportunities to express one’s thoughts and opinions – including negative opinions, harsh statements, and accusations of all kinds. However, just because a person can post something online, that does not necessarily mean they can do so without risk of civil liability.
Before making negative statements about identifiable people, businesses, and various other entities online, it is prudent to consider whether those statements may amount to defamation.
Online defamation includes words that:
- refer to an identifiable person or persons (in this context, “person” includes individuals as well as corporations and certain other “legal persons”) – either directly by name, or through circumstances which would lead reasonable people to understand that the statements refer to that person;
- are communicated to at least one person, other than the person who is the subject of the statements; and
- would tend to lower the reputation of the person who is the subject of the statements, in the minds of reasonable people.
If these conditions are met, the statement is considered “prima facie” defamatory – meaning, it is defamatory on its face.
There are various reasons why an online statement that is prima facie defamatory may, nevertheless, not result in civil liability for the person who made the statement. One of the most common reasons is that the statement is true. For example, if someone publicly states that Paul Bernardo is a convicted murderer, they will not be liable for defamation, even though key conditions for defamation have been met.
Another common reason why a prima facie defamatory statement may not result in liability is the “fair comment” defence. A comment which is:
- made on a matter of public interest;
- based on fact;
- a statement of opinion or commentary, recognizable as comment; and
- expresses a view that a person could honestly hold, based on the proven facts,
will be protected by this defence. The fair comment defence protects a wide range of speech and opinions, and is essential in ensuring that free expression is permitted in an open and democratic society.
However, two very important points should be noted. First: if you are sued based on online posts you made that are prima facie defamatory, you bear the burden of establishing that the statements are true, or that they are protected by a defence such as fair comment. Second: if defamatory statements are made with a malicious purpose, then defences that might otherwise protect you from liability, such as “truth” and “fair comment”, will not apply, as they are not intended to shield a person who acts with malice.
While it would be impossible to list all the types of potentially defamatory statements that are posted online, some common ones include accusations of:
- professional incompetence
- bigotry or prejudice
- participation in criminal activity
- mistreatment or exploitation of others
Before making an online post claiming that a person (or business) has exhibited these, or other undesirable conduct or characteristics, it is a good idea to think about whether you are running the risk of engaging in online defamation. Simply “being able” to make a statement, is not the same as being able to make a statement without consequences.