Permanent Trolling Injunctions Still a Temporary Solution

Trolls lurk in many dark recesses of the Internet. They make online browsing hurtful, defamatory, and sometimes, outright dangerous. These trolls are rarely slayed forever, and often raise their heads once again when given enough time.

The Ontario Court of Appeal recently reviewed an injunction granted in 2014 against a couple operating a website from publishing “in any manner” statement found to be defamatory towards an Ottawa lawyer, Richard Warman.

Among other grounds, the defendants sought a review of the permanent nature of the injunction as being overly broad. The very nature of the website in question was a discussion board with anonymous features, which effectively made the website inoperable. After the order for the injunction the website owners shut it down while waiting for the decision of the court.

The court reviewed the evidence presented at trial, which included the following:

  • the appellants had refused, despite request therefor, to remove the defamatory statements from their website until approximately nine months after being served with the respondent’s first notice of libel and seven months after the delivery of his statement of claim;
  • the appellants continued to post the respondent’s pleading and his second notice of libel on their website up to and after the commencement of trial;
  •  even after the jury verdict, the appellants posted a link on their website to a copy of the respondent’s statement of claim; and
  •  the jury found that the appellants acted with malice. This finding supported the conclusion that similar malicious postings on the appellants’ website could continue in the future.


Given the foregoing, the court found it reasonable to believe that absent a permanent injunction, this content would eventually be posted on the defendant’s site again.

But the court clarified that the potential liability for the defendants here, and the limits of the injunction, was based on whether there would be liability for third parties posting libelous statements on their forum,

[20] …Liability in that circumstance turns on whether the statements at issue have been deleted by the host after reasonable notice to delete has been given.

An imperfect remedy, as it would still require the plaintiff to monitor the defendants’ website. But a rather powerful remedy nonetheless.

The level of control a website operator has on anonymous comments comes up a lot in online defamation cases. The Supreme Court Canada explored this in part in Crookes v. Newton. The Court emphasized at para 85 the deliberate and knowing components for the legal definition of publication, which is a bilateral act where the publisher makes it available to a reader.

Although silence itself is not libel, failing to act to allow a continued presence for libelous statements may in fact be libel itself, especially if a defendant was made aware or had reason to be aware of defamatory information that they had sufficient control over.

These principles have already been applied in the U.K. defamation case of Godfrey v. Demon Internet Ltd., [1999] 4 All E.R. 342 (Q.B.), where a failure to act once aware itself became a form of defamation because it could be perceived to be a deliberate act of approval, adoption, promotion or ratification.

This principle has been adopted by Canadian courts at the appellate level, but at least one summary judgment decision indicates that officers and directors of corporations may not always exhibit sufficient control over these websites to be held personally liable, especially where they do not hold editorial control.


Yet this type of solution still relies on a successful defamatory action, and usually with some pretty ugly facts. It does little to deter the worst kind of behaviour, especially the type of cyberbullying we see directed towards minors. Attempts to address this problem following the Rethaeh Parsons incident through Nova Scotia’s Cyber-Safety Act has proven unsuccessful, for now.

Other jurisdictions have had similar lack of success, and the Internet is the one place where inter-jurisdictional cooperation matters the most. New Zealand’s Harmful Digital Communications (HDC) Act has undergone extensive debate in Parliament over 3 years before being passed earlier this year, but appears to have borrowed heavily from some of the least effective aspects of the American Digital Millennium Copyright Act (DMCA).

Dany O’Brien at the Electronic Frontier Foundation states,

The HDC Act magnifies the well-documented flaws of the DMCA into the perfect heckler’s veto. This is an ideal tool for a coordinated harassing mob—or simply a large crowd that disapproves of a particular piece of unpopular, but perfectly legitimate speech. Moreover, if the original user misses the 48-hour window to respond to a takedown order, then they will have no legal avenue to restore their deleted work.

The HDC also failed to include some of the safeguards from the DMCA, such as a penalty for misrepresentation or limits on the number of complaints.

Other measures adopted abroad include a mandatory pin number used in Korea for all commenting, until hackers stole 35 million of these identification numbers. Similar attempts have been tried in Brazil, and there is a resurgence of interest for these types of registrations in France.

Canada will also have to balance strategic protections against SLAPPs (Strategic Litigation Against Public Participation). Bill 52 in Ontario, The Protection of Public Participation Act, 2015, was instituted following the 2010 recommendations by the Anti-SLAPP Advisory Panel to protect freedom of speech on matters of public interest.

Although the Bill was intended to provide protection against defamation suits when concerns are reported through the Internet, it will invariably have the effect of bolstering some trolling behaviour under the guise of public interest. The amendments to the Libel and Slander Act specifically provides very broad protections to persons beyond just the media,

Communications on Public Interest Matters

Application of qualified privilege

25. Any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons.

This does bolster the ability for citizen journalists to comment with impunity, but also presents a significant question over abuse. A citizen blogger, attending the Warman trial and commenting on it on their site, including the defamatory statements, would arguably be protected under the section. The defendants, doing the same thing on their site, likely would not.

The real issue then with dealing with online trolls may not be the permanence of any order against them, but rather preventing the trolls from multiplying elsewhere over hills on the horizon. That challenge is one which our legal system and the principles behind online defamation, has yet to equip itself for.




  1. Interesting note, Omar. The whole question of intermediary liability is an interesting one – though arguably the defendants/appellants in the Warman case were not intermediaries but direct publishers. I have written on it elsewhere on Slaw, here and here.

    I disagree with your analysis of the recent Ontario anti-SLAPP legislation, though.I don’t think it’s the expansion of qualified privilege – essentially to overrule the old Boland v Globe and Mail case – that will have the effect you mention. Rather, it’s a direct result of Grant v Torstar in the SCC, which confirmed the ONCA’s creation of(or borrowing from England) a right of fair reporting on matters of public interest.

    I doubt as well that the general remedy against strategic litigation will create abuse – or not after the first few court decisions, anyway. One reason that the Advisory Panel recommended a fast-track appellate process is so that an authoritative interpretation could be obtained pretty quickly. Though there is a presumption against costs on the motion to dismiss to a successful plaintiff (i.e. one whose suit is allowed to continue), I expect that courts will not be sympathetic to expression that goes beyond what judicial decisions come to define as acceptable under the new law.

  2. John,

    Although the defendants here were indeed direct publishers, they brought the appeal out of a concern that they would be deemed intermediaries for any posts on their site after the order.

    The jury is still out on the new anti-SLAPP legislation. Experiences in other jurisdictions provide mixed reviews.

    The basis for inferring its origins are from the common law qualified privilege is page 18 of the Anti-SLAPP report, which details the reason for their recommendation that this defence be created,

    [75] This is consistent with the long-established principles underlying the defence of qualified privilege at common law. The scope for freedom of expression recognized by the proposed defence would be balanced by the fact that it would only be available to persons with a direct interest in a matter of public interest when speaking to others with a direct interest in that matter. As stated above, the defence would also be defeated by proof of malice.

    At para. 70, they refer to Grant, which came out the year prior, and describe it as an entirely different and novel defence which still requires factual inquiries into whether there has been responsible behaviour on behalf of a defendant.

    The greater challenge here is identifying who has a “direct interest” in a matter. The Court in Grant extended protection to those engaging in communications related to the public interest, including bloggers, at para 62.

    The Anti-SLAPP report appears to take a more narrow approach,

    [77] …On the one hand, the defence should continue to apply even if the media are present or if what is said is reported in the mass media. On the other hand, the defence should not be available to persons who do not have a direct interest in the subject matter or who are speaking directly to the media or, in some other fashion, to the public at large. It is only available to persons speaking without malice on a matter in which they have a direct interest, to persons who also have a direct interest in the subject. Thus the rule should exclude persons or groups whose interest in the issue is only policy-based: for example, an Environmental Non-Governmental Organization (NGO) speaking about a project in Town X not because it is particularly involved in what happens in Town X but because Town X has an environmental issue and the NGO is interested in environmental issues generally; or, similarly, a Business NGO speaking about the levying of a municipal tax in Town X when the Business NGO or its members would not pay the tax but it does not like the precedent the Town is setting for the Town is setting for the purpose of the possible future enactment of similar taxes in other municipalities.

    Although Anti-SLAPP legislation is typically intended to foster greater legitimate expression and debate in society, there’s a real concern that public interest NGOs, who often provide an important counter narrative in these societal debates, would be excluded from the discussion.

    The case at hand here though is about a much more important principle – the reputation of a lawyer. Justice Pierce stated in 1013952 Ont. Inc. et al v Sakinofsky et al,

    [10] Lawyers are both professionals and officers of the court. They are bound by a code of professional conduct the breach of which may subject them to discipline by the Law Society. They are also subject to the censure of the court for improper conduct.

    [11] A lawyer’s reputation is delicate. He or she works for a lifetime to establish it. It can be shattered in a moment by careless or vengeful pleading, as was attempted in this case.

    [12] The reputation of a lawyer for integrity is fundamental to his ability to earn a living in practice. It is his calling card in the community. When a lawyer’s reputation is damaged, so too is the personal credibility he brings to the court, in aid of his client’s cause.

    [13] However, scurrilous allegations against a lawyer affect far more than his ability to earn a living. Allegations of impropriety against one lawyer invariably reflect adversely on all lawyers. Such allegations lessen the dignity of the legal profession in the eyes of the public. By extension, the work of the court is also disrespected.

    It’s for these reasons that the trolling behaviour against this particular plaintiff is so concerning, and why we should take note of the issue.