Outlandish Reputation Not a Defence in Online Defamation (Awan v. Levant)

We may not all like Ezra Levant, but we do have a lot to thank him for. As a defendant, I cannot think of a single individual who has developed the jurisprudence of online defamation more than him.

The judgement against him in Vigna v. Levant, and the related costs decision, has for several years now been the best authority on which blog content may be defamatory, and what may not be. However, the modest damages award in this case, and others, have still made online defamation a challenging area for plaintiffs.

Not one to disappoint, Levant was ordered this past week to pay $80,000 in damages in an online defamation case against lawyer and activist Khurrum Awan. The judge in this case, Justice Matheson, even relied on Levant’s previous online defamation case to help inform her decision in this one. The blog posts in question include no less than 8 separate posts referring to a law student as a “liar,” prominently featuring this same sentiment in the blog titles.

Justice Matheson began by referencing the test set out in Grant v. Torstar,

1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiffs reputation in the eyes of a reasonable person;
2. that the words in fact related to the plaintiff; and,
3. that the words were published, meaning that they were communicated to at least
   one person other than the plaintiff.

As the blog posts in question were deliberately intended to relate to the plaintiff and were publicly disseminated, the focus of the case was whether these posts were defamatory.

Levant attempted to rely on his own reputation to suggest that the posts would not lower the plaintiff’s reputation,

[79] The defendant makes a general assertion that none of the words complained of were defamatory due to the defendant’s reputation. Mr. Levant’s counsel submitted at trial that readers of Mr. Levant’s blog would not take all of his comments about the plaintiff “at face value” and would be “well aware of Mr. Levant’s penchant to stir controversy and make outlandish comments at times.” The defendant was described as having the reputation of “someone who is provocative, makes controversial comments and can be a troublemaker.”

The shock-jock argument was advanced by Justice LeBel’s dissent in WIC Radio Ltd. v. Simpson. Although proof of harm to reputation is not required for defamation, it is required that the full context of the statement would reduce the reasonable person’s opinion of the plaintiff. The colourful and provocative language used by the defendant in WIC Radio would not have been taken at face value given the nature of the ongoing public debate between the parties.

This argument has also been relied upon before to suggest that online defamation itself is somehow less serious, less injurious, and should not receive the same treatment in law, a proposition that I’ve explicitly rejected. This proposition was employed on summary judgment in Baglow v. Smith, but was overturned by the Court of Appeal.

Justice Matheson also rebuffed this approach, indicating that “the estimation of right‑thinking members of society individual” test used in Botiuk v. Toronto Free Press Publications Ltd. is an objective one,

[89] I agree with and follow the approach reflected in the decision of Justice Binnie in WIC Radio. The impugned words in WIC Radio were plainly defamatory. They were not saved from that conclusion because of the known characteristics of the speaker. Nor is the defendant here saved from defending his words by his reputation alone.

[90] I do not rule out the possibility that some speech may be so widely known to be false or unbelievable that its otherwise defamatory meaning is lost. However, that is not the case before me.

Of particular concern in this case was that the plaintiff had been referred to as a liar, and is a member of the bar,

[82] In this case, the impugned words include numerous meanings that would, in the ordinary course, be readily regarded as defamatory. The defendant has said, over and over again, that the plaintiff is a liar. This alone would tend to lower the plaintiffs reputation among ordinary right-thinking members of society. It obviously bears the meaning that the plaintiff is dishonest, and casts doubt on his integrity, the most important attribute of any lawyer: Botiuk, at para. 69. Honesty and integrity are no less important for a law student who is about to embark on a career as a lawyer.

Levant attempted to rely on the defence of fair comment, enunciated in WIC Radio,

(1) the comment must be on a matter of public interest;
(2) the comment must be based on fact;
(3) the comment, though it can include inferences of fact, must be recognizable as comment; and,
(4) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?

Although the issues were a matter of public interest, Justice Matheson emphasized that the dignity and worth of the individual are important values at stake, citing Justice Binnie’s comment in WIC Radio,

[2] This is a private law case that is not governed directly by the Charter . Yet it was common ground in the argument before us that the evolution of the common law is to be informed and guided by Charter  values. Particular emphasis was placed on the importance of ensuring that the law of fair comment is developed in a manner consistent with the values underlying freedom of expression. However, the worth and dignity of each individual, including reputation, is an important value underlying the Charter  and is to be weighed in the balance with freedom of expression, including freedom of the media. The Court’s task is not to prefer one over the other by ordering a “hierarchy” of rights (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835), but to attempt a reconciliation. An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to “chill” freewheeling debate on matters of public interest.  As it was put by counsel for the intervener Media Coalition, “No one will really notice if some [media] are silenced; others speaking on safer and more mundane subjects will fill the gap” (Factum, at para. 14).
[emphasis added]

Considering the editorial nature of the commentary involved, it was particularly important to separate which statements are fact, and which statements are comment. Without this, readers cannot properly make up their minds about the merits of the comments being made or make their own conclusions. Without this clear delineation, the defence of fair comment is not available.

Levant wrote posts indicating that the plaintiff was a “liar” as a statement of fact, and these statements were not recognizable as mere comments which could be distinguished from facts. The description of the plaintiff as a “liar” was prominently featured in the blog posts repeatedly, meaning that this is what was primarily seen to individuals on Google search results. Levant had also made erroneous statements about the plaintiff’s employment prospects, and did not update all of his blog post when informed that this was incorrect,

[142] The defendant cannot rely on fair comment in relation to the statement about having trouble finding employment since they are not based on true facts. The defendant disputes the remaining meanings complained of, saying that nothing in the post is capable of meaning that the plaintiff is unethical or not fit to be a lawyer. I disagree. The post bears the meanings that the plaintiff is incompetent and tells lies to suit his audience, which meanings in turn suggest he is unethical and not fit to be a lawyer. And, as discussed above, those meanings have not been successfully defended…

[150] It is alleged that these words meant and were understood to mean that the plaintiff is a liar, is dishonest and deceptive, and is a person who seeks to deceive the court. Again, the words do bear these meanings, which are defamatory…

[187] At trial, the defendant took little or no responsibility for the accuracy of the words complained of, routinely attempting to minimize or mischaracterize his own errors. The defendant did not, at any time, seek any input or comment from the plaintiff. When asked why not, he said that the plaintiff could have and did not contact him.

The refusal to update this information was used when assessing mitigation of damages and award of aggravated damages. Although Levant had attempted to correct some of the content through the use of striking through the text, Justice Matheson did not support the plaintiff’s claim on this basis,

[168] There was no evidence before me significantly challenging the practice that the defendant relied upon of striking out words. While I would not endorse this approach as a routine matter, in the specific context of this blog post I am satisfied that the readers of the blog post would not have regarded the crossed out words as defamatory. The claim based upon those words therefore fails.

Levant also attempted to rely on the defence of qualified privilege, where a fair and accurate report of judicial or quasi-judicial proceedings is protected, subject only to malice.

In order to be accurate, a report does not have to be accurate in every single respect, but it should not misstate the facts. The report should also be fair in being just and impartial about the subjects of the commentary,

[112] There is some room for literary licence provided that the report is fair. However, the addition of comments that have no foundation of fact and have the effect of holding the plaintiff up to public ridicule and contempt may result in loss of the privilege: Brown, at pp. 14-28, 14- 41. Further, if the conduct of the defendant is high-handed and careless, exceeding the legitimate purpose of the occasion, the privilege may be lost even if not published maliciously: Hill, at para. 156.

Justice Matheson did not find Levant’s blog as fair and accurate, and the defamatory comments of being a liar did not directly relate to any judicial or quasi-judicial context. He also made several factual errors about the standing of the plaintiff in regards to the human rights proceedings which Levant was commenting on.

The refusal of Levant to conduct even basic fact-checking in his posts, refusal to correct the content, and the ill will demonstrated in the content of the blog, all demonstrated malice, which would defeat any defence of fair comment or qualified privilege. Levant was successful in demonstrating that some of his posts, referring to the lawsuit as a “shakedown,” would have been protected by fair comment. However, Justice Matheson concluded,

[188] I find that the defendant’s dominant motive in these blog posts was ill-will, and that his repeated failure to take even basic steps to check his facts showed a reckless disregard for the truth.

[189] As a result, to the extent that I concluded above that cet1ain of the words complained of were properly the subject of a fair comment defence, that defence is defeated by malice.

Justice Matheson referred to the Court of Appeal’s decision in Barrick Gold Corp. v. Lopehandia to assess damages. The factors she reviewed included the following:

• the plaintiffs position and standing
• the nature and seriousness of the defamatory statements
• the mode and extent of publication
• the absence or refusal of any retraction or apology
• the whole conduct and motive of the defendant from publication through judgment
• any evidence of aggravating or mitigating circumstances

The context of the statements being made online only aggravate the defamatory nature, per Barrick Gold,

[31] Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: see Vaquero Energy Ltd. v. Weir,[2004] A.J. No. 84, 2004 ABQB 68 (CanLII), at para. 17.

Justice Matheson examined limited evidence of the web traffic on Levant’s blog, approximately 100,000 visits over a 3-day period reviewed in 2008. The real concern was the nature of calling a young lawyer a “liar,” and the potential impact on his career,

[195] In this case, the plaintiff was at a vulnerable stage of his career during the publication of the nine blog posts. Although he had already secured an articling position at Lerners, which he completed over the period 2008/2009, he then had to look for a job. Lemers had no openings in his area. Contrary to his prior experience, he was having difficulty finding a job. Although he cannot be sure, he believes that the blog posts were a negative factor in his job search. A Google search, which would ordinarily be done by a prospective employer, brought up the many defamatory headlines at issue here and links to other defamatory statements by the defendant.

[196] The plaintiffs and his wife’s family were in Toronto, but he decided to expand his search and ultimately did secure a job in Saskatchewan. Although he testified about his continuing worries that colleagues and others would see the blogs and believe their defamatory imputations, he has achieved some success in his position. However, he has deferred a return to Ontario out of concern that he will, once again, have problems finding a position.

[197] As for the nature and seriousness of the defamatory statements, they are extremely serious. They go to the heart of both the plaintiffs reputation as a lawyer and as a member of our society.

Justice Matheson considered these factors, the fact that the plaintiff’s advocacy work was inherently controversial, and that Levant’s own reputation would mean readers would be familiar with his views and discount the commentary appropriately. She awarded a “modest” award considering the application was brought under Simplified Rules, and awarded general damages of $50,000.

The finding of malice, however, gave rise to an award of $30,000 for aggravated damages,

[207] Aggravating factors include the repetition of the word “liar” in the headlines, the many references to lying in some of the later blogs and the inclusion of hyperlinks to all of the prior “liar” blogs in the eighth blog, posted a year later.

[208] The headlines are particularly aggravating given their impact in the context of Internet searches, especially by employers considering job applications.

Justice Matheson also commented on the fact that Levant is a lawyer, and purports to be reporting on legal proceedings. She stated that he ought to be aware of the serious ramifications of his words on the professional reputation of the plaintiff.

Finally, Justice Matheson ordered that Levant remove the defamatory content from his blog within 15 days, including a proposed plan where only part of the content would be removed.

The case is important because it does award damages for online defamation at a higher level than what we’ve observed in the past. This suggests that when courts assess damages for online defamation in the future they will not necessarily treat it as less serious, a position I’ve explicitly endorsed.

In my opinion this is a positive development which reflects the current commercial realities. The use of Google search results, in particular searches of a plaintiff’s name, can itself be defamatory when the content showing up on these results because when readers do not delve into the content by clicking on the link to appreciate the entire context.

I would go farther and say that where such content is made anonymously, these are factors which should be included in assessment of aggravated and punitive damages. Where efforts have to be made to identify the defendant, for example through use of a Norwich order, this should also speak to costs.

Also refreshing in this decision is the implications of defamatory content against professionals, in particular, a young lawyer by another member of the bar. Online communications in the professional context should be conducted professionally. For those of us calling for greater civility, both online and off, this decision is an important reminder of those responsibilities.