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Watch what you say

Before you hit send, have you considered the legal consequences?

In March of 2018, Randy Winchester and his daughter Emily, producers of Highland cattle at Wellsville, Kansas, attended the annual meeting of the Heartland Highland Cattle Association (HHCA) in Branson, Missouri. Attendees at the meeting were able to visit Bigfoot on the Strip, a nearby theme park, and take the “Bigfoot Safari Tour.”

Following their return home, the Winchesters did what many people do after any type of tour or holiday. They posted a review on the travel site TripAdvisor.com.

Randy gave the experience three stars and wrote: “We did the Bigfoot Safari tour as part of a large group. The $10 price tag is about right for what we got. Basically a tour through some pretty rugged country on some pretty narrow roads. They promote the fact they have the largest herd of Highland cows in the Midwest. You spend about 5-10 minutes feeding them range cubes at the beginning of the tour, and see maybe 10 of the cows. Then it’s off into the hills you go with a guide telling some pretty fanciful tales along the way. All in all a decent experience but had we paid more than the $10 I would have been disappointed.”

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“Randy w.” was credited with this posting on the site.

The Winchesters had no idea of the problems and stress this simple review would cause.

Darrell Henley, one of the principals of the theme park took exception to the review. By examining the participant list of attendees at the HHCA meeting he identified the Winchesters as posters of the review. According to court records: “Thereafter, Henley exchanged an unknown and disputed number of communications with Randy and Emily via telephone and email.”

Matters came to a head the next month when the Winchesters were sued in state court for libel, negligence, and tortious interference with business expectancy. A year of legal wrangling, suits and countersuits followed.

The case was eventually moved to United States District Court for the Western District of Missouri Southern Division and finally, on August 30, 2019, Chief Judge Beth Phillips found in summary judgment that the Winchesters did not defame the theme park.

While the Winchesters may have been absolved from defaming the theme park, it did not come without significant financial and personal costs.

Today, more and more people are sitting up and taking notice of what is being said about them on social media and the internet. And increasingly, they are taking action against anyone posting lies, making false statements, or even sharing disparaging remarks that might lead to a loss of their reputation or to business losses. The cost of being found guilty for defaming someone can be huge.

On January 31, 2018 the Ontario Court of Appeal upheld a lower court’s findings of $700,000 in damages against Saul Rabinowitz and Moishe Bergman. Until 2007 they were business partners with Ronald Rutman. The animosity over the business breakup escalated to the point that in December 2009, Rabinowitz began pseudonymously posting on Gigpark Inc. that Rutman was “a tax cheat, corrupt, a master of tax fraud, a thief and a crook” according to Lexpert, a Canadian legal publication.

At the appeals trial, Rabinowitz admitted to the court he was responsible and liable for the defamation. What he was appealing was the amount awarded in damages. Rabinowitz lost and he has now sought leave to appeal the damages to the Supreme Court of Canada.

There is no assurance the Supreme Court will hear the case. In April 2016 the Supreme Court declined to hear the appeal of the $1.1 million the B.C. Supreme Court awarded to Vancouverite Altaf Nazerali in finding he was defamed by Utah resident Patrick Byrne, CEO of the online retailer Overstock.com. Byrne publishes a website named Deep Capture which had portrayed Nazerali as an arms dealer, drug trafficker, al-Qaida financier and member of the Russian and Italian mafias. That defamation case took seven years to wind through the courts.

Defamation law in Canada

Gil Zvulony of Zvulony & Co. PC is a defamation lawyer in Toronto. He says cyber-libel is becoming more common. He warns: “What you write online can come back to bite you.”

Zvulony explains defamation is defined as untrue statements which lower the reputation of someone. If it is spoken it is slander. If it is written it is libel. If it is delivered online by email or a posting it is referred to as cyber-libel. There are three criteria necessary for a finding of defamation:

  • The communication refers to a specific person/group/organization/business/product.
  • The communication is intended to harm their reputation.
  • The communication is delivered to a third party.

According to Zvulony, defamation is usually easy to prove. A defamed person does not have to prove damages. Contrary to most civic actions, the onus lies with the defendant to prove the statements he made are in fact truthful rather than for the plaintiff to prove damages.

Defamation awards are intended to compensate for loss of reputation, which is difficult to determine. As a result, defamation cases that end up in court are typically over the amount of damages. Therefore, Zvulony stresses: “If you can’t prove it, don’t say it.”

Zvulony then listed defenses that are used against a defamation claim:

  • If the statements made are in fact true.
  • If the statement is made only to the person it is about and not anyone else.
  • Absolute privilege — statements made in court or parliament.
  • Qualified privilege — statements made without intent to harm and for good reason (for example, providing an honest opinion about someone when asked as a reference).
  • Fair comment — statements about matters of public interest that are honest statements of personal opinion and are based on fact.
  • Responsible communication — this allows journalists to report statements and allegations made provided the news is of public importance and the journalist used reliable sources and tried to report both sides of the issue. Free speech is not a defense. Defamation laws do not limit free expression. You can still say what you want; you just have to pay if what you say is untrue and causes harm.

The fact the subject of your attack is a politician is not a defense. Politicians can sue for defamation just like anyone else. In 2019, Devin Nunes, the U.S. Representative for California’s 22nd congressional district filed defamation lawsuits against CNN for $435 million, against The McClatchy Company and Liz Mair for $150 million, and against Twitter, Mair, and the two parody twitter accounts Devin Nunes Cow and Devin Nunes’s Mom for $250 million.

Regardless if these defamation suits have real merit, or if they will eventually be thrown out by the courts, they are expensive and time consuming for the defendants.

Nor is anonymity a defense. It shocks me what people post on social media sites, especially if they are able to post anonymously. Growing up, if I had said the things that are now commonplace on social media, I would have had my mouth washed out with soap.

Demeaning statements and innuendo are pervasive throughout the internet, including on agriculture-related sites.

A case in point is a US$5 million award by a federal court in California to James K. Jordan, a 27-year employee of Wonderful Citrus, Kern County, California’s largest farming company, after his employer sent two emails to over 300 employees saying Jordan was going to be terminated and falsely accusing him of stealing from the company.

After the courts found the allegations against Jordan not to be true, and this was reported on Bakersfield.com, a poster using the handle LeroyJohonson still went ahead and publicly posted: “Jordan was not angel! Everyone who worked with him would say the same thing. If anyone takes the time to look into his, (sic) then they would see this as clear as day. Ask Jordan about his comments in the afternoon that he sworn he would never make again. Did he keep that promise? … NO.”

Are you really anonymous?

Most websites track user information on all postings. That information, if ordered by the courts in a defamation suit, must be provided to the internet service provider, who then can reveal the IP address of the computer and/or the subscriber information.

In January of this year, Ontario Superior Court, in a landmark decision, ruled in favour of Theralase Technologies Inc., a publicly traded pharmaceutical company, and its principals, in their defamation suit against anonymous internet posters.

A dozen posters have been fined thousands of dollars for posts they left on Bullboard forum in 2014 and 2015 accusing principals Roger Dumoulin-White and spouse, Kristina Hachey, of lying and illegal criminal behaviour.

Examples of posts presented in court include: “Roger is like a pest diseased dog spreading his filthy rabbies (sic),” the user Nastynasta wrote. “A mangy dog that won’t go away until he’s put down.”“The management team are liars!!!” TrueNorthStrong wrote. “Been lying for 21 years!!”

Posters were identified by their email addresses used to access the forum. Only one person so identified has come forward and the suit against him is ongoing at the time of writing. The other 11 individuals were found in default and each was ordered to pay between $7,500 and $35,000 to each plaintiff. Further, the judge ordered these defendants must pay $55,000 in legal costs, citing their failure to participate in the lawsuit.

In his judgment on January 13, Justice Frederick Myers wrote: “If people want to make hurtful statements about others and then try to hide from the responsibility to prove the truth or other justification for doing so, then as discussed by Goldstein J., their cowardice is reprehensible, and, in my view, they should bear costs on a substantial indemnity basis.”

There is no question that defamatory remarks harm reputations. False accusations can end marriages, cost jobs, even destroy small businesses.

A defamation suit may provide some economic remediation but personal reputation damage may never be repaired.

Have you been defamed?

Zvulony has posted a list of the “Top 10 Tips for Internet Defamation Victims.” It details steps which should be considered if you feel you have been defamed. He warns: “Starting a lawsuit is the last option … It is expensive, uncertain, and emotionally draining.”

Before suing for defamation, Zvulony says to act fast, get expert help, determine the parties, determine the scope of the defamation, preserve the evidence, consider ignoring it, consider a refutation, and consider burying it or issuing cease and desist. For a complete description of each of these actions check out this article at zvulony.ca.

More importantly, ask yourself, is your post intended to belittle, harm or attack someone’s reputation? Is it the truth, or just what you believe? You may think the meme is funny, but will the person you are attacking think so?

Ask yourself how you would feel if those words or pictures were posted about yourself or your mother. Would you be comfortable if what you posted appeared on the front page of a newspaper?

Says Zvulony: “Be careful with your words. Words are important.”


Guaranteed removals

Of course, today’s spike in defamation charges and awards also offers a business opportunity.

Unique in the world. Guaranteed Removals is a Burlington, Ont.-based business, started in 2016, to permanently delete online content. The Globe and Mail ranked the company as #55 in their 2019 list of Canada’s Top Growing Companies.

Guaranteed Removals’ website claims they can permanently delete online blogs, news articles, reviews and complaints, civil legal documents, government links, public forums and attack sites, unwanted pictures/videos and mugshots.

Guaranteed Removals provides a personalized quote for permanent removal of online content you want removed, and no payment is made until the removal of all such content has been completed.

If your business or personal life is being negatively impacted by online material, you may want to consider the services of a company like Guaranteed Removals to permanently remove material offensive to you.

Or if you have posted offensive material, hiring such a company to remove your defamatory posting may be a relatively inexpensive way of protecting yourself from a crippling lawsuit.

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