When Cancel Culture Is Liable in Defamation

Isolation in one’s home and glued to an electronic device, it was inevitable that people would be come more activist online. A growing trend has been where public backlash online, also known as cancelling or calling out, is used to block someone from having a platform or career.

The debate around the utility of cancel culture weaves between delicate balances of expression rights and bullying concerns. While the practice started in progressive circles, it has more recently been weaponized by right-wing groups as well.

What people may not have anticipated is that the attempts to “cancel” someone could actually be defamatory. A recent Ontario Superior Court of Justice decision in Lavallee et al. v. Isak illustrates this concern.

The facts emerge out of a short video on Snapchat of two friends play fighting, posted by a third friend. A snapshot of this video, i.e. only a single image from the 15-20 sec clip, was taken by someone else, who didn’t even know the two friends playing and had never communicated with each other before.

This person who took the snapshot condemned the image as mocking George Floyd’s death, as it was a position where one friend was on top of the other, with one of them face down on the ground. They shared this image on numerous other social media platforms, calling the two friends racist. However, at no time did they ever see the entire video clip, or know the context through which the image was created.

The image went viral, being viewed 15,000-40,000 times, the the person who posted the image continued with a campaign to destroy their lives. The two friends lost their jobs, and had to delete their social media accounts. One of them issued an apology, but the backlash continued to have an effect on their work prospects and career, so they sued for defamation.

The case was decided on summary judgment under Rule 20.04(2)(a) of the Rules of Civil Procedure. There was no dispute that the words referred to the plaintiffs, or were published on social media platforms. The defendant disputed that the posts would lower their reputation, but Justice Smith rejected this position,

[28] I disagree. Solit accuses Justine and Shania of being racists and mocking the tragic death of George Floyd. Solit’s posts are serious accusations of improper conduct. One of her post’s associates Justine and Shania to the Klu Klux Klan. Solit’s statements have engendered feelings of hatred, contempt, dislike, and hostility towards Justine and Shania.

[29] A reasonable person reading Solit’s social media posts will easily tend to lower Justine and Shania’s reputation. Each of Solit’s posts are brief, but taken as a whole, the reasonable person would think and conclude that Justine and Shania are racists.

The defendant attempted to use the defences of justification and fair comment. The defence of justification was not made out, as the defendant was unable to prove that the plaintiffs were racist. Justice Smith emphasized that not only did she never see the video, but she made no efforts to verify the truth o the video.

Applying the test for fair comment from Grant v. TorStar, Justice Smith indicated that even if the image resembled the brutal killing of George Floyd, the factual background was devoid of any of the indicia of racism that would suggest that the pose was deliberate or planned in that way,

[61] Solit’s argument is flawed. There must be the existence of a factual foundation. The Supreme Court of Canada stated as such in the case WIC Radio Ltd. V. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 31: “[i]t is true ‘[t]hat the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.’” Without the factual background, the fair comment defence is not available.

[62] Solit was required to sufficiently state the facts so that her readers can make up their own minds on the merits. Solit does not provide any background facts in her statements, not even in general terms. Rather, on unsubstantiated evidence that “police brutality” was said in the Video, she immediately posts the Screenshot and accuses Justine, Shania, and Gilmour of mocking the tragic death of George Floyd.

[63] In my opinion, Solit did not set out the factual foundation that was required. As stated earlier, Shania’s apology must be put into context and I reiterate that it is not an admission of guilt. In terms of the instant virality of the Screenshot, it is my view that the viewers made up their mind on unstated and unknown facts.

The allegations were not shared as an opinion, but rather as a statement of fact that were not recognizable as comment. However, Justice Smith did not find this was done by malice, but rather she “acted hastily, used poor judgment, and jumped to conclusions on unsubstantiated evidence,”

[69] Malice must be the dominant motive for expressing an opinion. Solit’s dominant motive was not malice. She sees herself as a social media activist fighting racial injustice. Her dominant motive was to denounce racism but it was reckless.

Justice Smith declined to award aggravated or punitive damages, even though he found the actions to be reprehensible and demonstrated complete disregard for the well-being of the plaintiffs. Instead, he awarded general damages of $50,000 to each of the plaintiffs.

This decision has potential to curb some of the excesses of online exchanges, in that there is far too little accountability for much of the cancel culture that exists. However, there are some limitations to it as well.

The test for fair comment also allows for a defendant to prove that any person honestly express the opinion of the defendant on the proved facts, as long as no malice is involved. The defendant here pointed to widespread consensus in her social group that the image was offensive, and in their views, racist, but was unable to introduce evidence on that point.

Had the defendant clearly stated that her opinion of the image was that it depicted racist, and she was able to introduce more information about how others would view it, this defence may have worked differently.

The Court in WIC Radio Ltd. v. Simpson expanded this defence to allow for more robust debate in society. Instead of opinions that a “fair‑minded” person could hold, the Court adopted a standard from para 3 of the Australian case in Channel Seven Adelaide Pty Ltd v Manock, that “any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.” They stated,

[50] Admittedly, the “objective” test is not a high threshold for the defendants to meet, but nor is it in the public interest to deny the defence to a piece of devil’s advocacy that the writer may have doubts about (but is quite capable of honest belief) which contributes to the debate on a matter of public interest.

[51] Of course, even the latitude allowed by the “objective” honest belief test may be exceeded. “Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective”; Reynolds, at p. 615.

This standard could be perhaps refined further to whether a racialized person, given the social context of racial dynamics and comments on the subject matter at the time in Canada, would consider the image to be racist. The issue of George Floyd’s death was obviously a prominent subject at the time of the facts in this case. Evidence on this point may changed the outcome.

Finally, many mainstream media channels also covered the story. The Star described it in the contents as “depicting what many users believed to be a re-enactment of George Floyd’s death [emphasis added],” but the headline states the depiction as related to these events as facts, stating, “…video posted on social media mocking death of George Floyd.”

The Court in Grant described how different media actors, such as bloggers or mainstream media, have different abilities to verify the facts, albeit in the context of the responsible communication on matters of public interest defence.

These media companies also did not confirm the contents of the video (though they did attempt to contact the plaintiffs). The defendant failed to use this defence, which maintains an exception to the repetition rule that holds that repeating libel has the same consequences as originating it.

The defendant in this case was unemployed, and Justice Smith pointed out it was unlikely that the plaintiffs would be paid the damages. Not only does this fail to assist the plaintiffs in regards to the function of general damages, as described in Mina Mar Group Inc. v. Divine.

The plaintiffs may have been better served by including some of the others who had made similar statements, in mainstream media or elsewhere. The defences may also have played out differently though if they did.

The potential for liability for cancel culture, as illustrated in this case, may still be effective in addressing some of the most toxic elements of it, while still maintaining robust expression rights around matters of public interest.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)