Amid the online backlash against former CBC host Jian Ghomeshi, there are those urging social media users not to convict him in the court of public opinion. But there might be a more compelling reason for those appalled with his alleged behaviour to keep their snarky remarks to themselves — it could open them up to a lawsuit.
“Defamation law doesn’t discriminate between new media and old media,” said Iain MacKinnon, a Toronto lawyer with Chitiz Pathak who routinely deals with defamation cases.
Ghomeshi is facing allegations published in the Toronto Star of violence, sexual abuse and harassment of eight women. Before the Star published the first set of allegations on Sunday, CBC dismissed Ghomeshi as host of the popular current affairs radio show Q. Ghomeshi followed this with a 1,500-word Facebook post, stating that his dismissal was over disapproval of his sexual practices, which include BDSM.
An untrue written statement that could damage the reputation of the person it’s written about, that at least one other person has read, is the definition for defamation — and it’s usually easy to establish, said MacKinnon.
Then why doesn’t MacKinnon think musician Owen Pallett’s Facebook post stating “Jian Ghomeshi beats women” is defamatory?
Ghomeshi’s post detailing his proclivities for BDSM provides the basis for being able to state he hits women as a fact, said MacKinnon.
This would provide Pallett with the best defence against defamation — truth.
Pallett’s post on the allegations against Ghomeshi is one out of thousands on the subject. Most lack the careful balance Pallett seems to have strived for as a friend of Ghomeshi’s, instead accusing him of malicious intent and heinous acts.
“Arguably most of what’s posted under comments on a Facebook posting is likely to be found to be opinion or comment,” said MacKinnon of comments posted underneath Ghomeshi’s latest posts.
“You’re allowed to have an opinion that can be very extreme.”
This would be the “fair comment” defence to defamation. The key to success with this defence is that the comment must be based on facts. Comments alleging Ghomeshi is a misogynist would fit under this defence but others that include words like “rape” may not.
“If you start wading into the women not consenting, that gets dicier because we don’t know that fact,” MacKinnon added.
A Facebook user named “Jane Doe” alleged physical and verbal abuse in a comment on Ghomeshi’s latest post — a statement that might be found to be defamatory, though finding someone to hold to account might be difficult. If you share such a defamatory view, could you be on the hook?
Potentially, says MacKinnon.
Simply sharing a link that has defamatory content won’t get you in trouble. A 2011 Supreme Court decision laid out that sharing a link in a neutral way does not make you responsible for defamatory content in that link. But adding your two cents could.
“If you go one or two steps further than that and comment on it or endorse it somehow, you could be exposing yourself to liability,” said MacKinnon.
Retweeting, liking or favouriting a tweet likely wouldn’t meet the threshold of endorsement, said MacKinnon.
Despite the volume of potentially defamatory material on social media, the expense associated with bringing a lawsuit has been a barrier to social-media defamation cases, said MacKinnon.