With the explosion of social media sites such as Facebook, Twitter, Yelp and so on, our online identities are becoming a significant part of our personal and professional lives. Although these sites can be great sources of entertainment, socialization and communication, when comments, photos and videos become insulting, derogatory or abusive, legal issues may arise. This can be particularly true when your clients, employees, employer(s) or other contacts might come across these postings simply by ”Googling” your name.
So, what do you do if someone has posted defamatory remarks online? Often your first step is possibly the most obvious: report it. Given the volume of users and the nature of their service, sites like Facebook cannot police every comment and rely on users to report issues. If and when you come across something offensive, bring it to the site’s attention using their reporting function or removal request. Such valid requests should be promptly honored and the offending content removed.
If the site fails to remove the content, your legal options become more complicated. If you are aware of the identity of the party posting the defamatory content, you can make a written demand offline for removal and consider commencing a claim against them if they fail to comply. To be successful you will have to prove:
- That the posting was defamatory in nature, meaning that the statement discredited you, damaged your reputation, exposed you to ridicule etc.;
- That the statement referred to you specifically;
- The statement was published, meaning it was communicated to someone other than yourself; and
- You have suffered damage as a result of the statement. However, in the case of a written remark this will be presumed.
Your claim will then be subject to various defences such as truth, or that the statement was a “fair comment” (it was made in good faith, honestly, on a matter of public interest). The reality of bringing a defamation claim will force you to evaluate the costs of time and money involved against the need to have the comment removed or to recover financial damages. Consider questions such as “will your target resist your claim?” and “if you are successful, do they have assets to satisfy a judgment against them?”
When considering their changes of recovery, people often wonder if they can instead sue the web site on which the comment was posted. Generally speaking, the web site provides a forum, and is not responsible for the content of the postings. However, where the site has refused or failed to comply with a removal request, the argument might be made that they have adopted the statement(s) as their own. If successful, this argument could expose the site to liability and is likely the reason reporting and removal functions are included in reputable sites.
This area of law is still developing and involves issues such as identification of the potential defendant, jurisdiction over out of province web sites, and various practical and procedural issues. If you feel you have been defamed online, consult a lawyer for a complete assessment of your options.
