Daniel Reid, Defamation, Privacy & Media lawyer with Harper Grey, was interviewed by David Molko, reporter for CTV News Vancouver, and provided commentary regarding the accusations made against the band Hedley from anonymous accounts and “Trial by Twitter”.
The CTV News Vancouver segment which aired on February 19, 2018 can be viewed here.
Daniel elaborated on the segment:
“It’s a fascinating issue, in part because the authors are likely unwittingly putting themselves at risk of being sued for defamation.
In the United States, their first amendment and associated cases and law means that it is very difficult for public figures (or for most people) to sue for defamation.
Specifically, in the US, the onus is on the party suing to prove it is false to succeed in a defamation claim. In addition, even if someone proves that the allegation is false, if the party is a public figure (like Hedley), they would typically also have to prove “malice” (I.e. the person posting knew it was false and posted with the intent to cause harm to reputation).
Neither applies in Canada. If someone makes an allegation, the onus is on them to prove the truth.
But because we live so close to the US and much of our media (including social media) is US based, many people have the impression that the law is the same. It is not, and people can and do get sued for what they post on social media.
It’s also very difficult to be “anonymous” online. Part of the work we do is get court orders directing Twitter/Facebook/Google etc. To give us information about the owner of the account that posts anonymous allegations, including associated names, email addresses, IP addresses (the internet account they posted from).
While the law is a strong defence to a defamation claim, the problem with these types of allegations is that the damage is done immediately, and for a host of reasons, going to court may not be practical.
First, there is the high cost associated with court proceedings. Second, but in some cases more importantly, there is a risk that taking legal action against complainants will damage reputation further, especially given the increased attention given to previously ignored and marginalized voices arising out of the #MeToo movement.
It’s a bad situation for everyone – people posting online may not know they face real legal risk, and others are having their reputations destroyed (deservingly or not) by anonymous online posts.
That doesn’t mean people can’t complain about historical sexual misconduct – there are defences that may apply to complaining to the police, speaking to friends or family members, speaking to counsellors or medical professionals, or or in some circumstances, communications with a close knit industry or group. But there’s a difference between an allegation made to these groups and an allegation posted online, for the world to see.”