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Torts - Defamation - Internet. Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions. In these quotes the lower court comments on the frequent nature of social media content:[25] Evans-Bitten’s pattern of tweeting was “immoderate”, according to the motion judge, in that she denounced people including the appellant for banalities such as appearing in photographs with conservative politicians. But the motion judge stated that this shows only that “[the appellant] has delved into a very harsh medium by expressing his views on Twitter – a medium where outlandish criticism is the norm.” Twitter broadly disseminates and greatly amplifies everything written on the platform. It is a rhetorical environment – a “schoolyard-like atmosphere” in which “hyperbolic argumentation should not be construed as a threat or a rarified form of verbal assault”.
[26] The motion judge stated that Twitter is not a medium for serious political debate, but its lack of seriousness militates in the respondents’ favour: Twitter is, he said, a “rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken.” Nothing said by the respondents, viewed in context, “is harsher than, or is an overreaction to, the language of [the appellant]’s tweets themselves.” Citing Bernier v. Kinsella et al., 2021 ONSC 7451, 73 C.P.C. (8th) 280, at para. 66, the motion judge stated that “a stark difference in political views does not make commentary malicious or undermine the fact that the commentary is fair comment.” The motion judge concluded:[The appellant] jumped into the turbulent river of Twitter commentary with some vulgarly worded observations that touched a nerve with the [respondents]. He got it back as good as he gave it, and got wet in the process. In the context of Twitter, there is every reason to believe that what [the respondents] doled back to him was fair comment. However, the Court of Appeal later dispels any notion that the uncivil nature of social media excuses any increased tolerance for abuse:[40] The quality of the expression in these communications is not relevant to the threshold question – whether that expression related to a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 24-25. The parties agree that it did and accordingly s. 137.1 was in play. But expression is not immunized from defamation proceedings simply because it relates to matters of public interest. The protection afforded by s. 137.1 is narrower: it establishes a procedure to dismiss proceedings that can be identified as strategic or abusive at an early stage in order to protect freedom of expression. Section 137.1 does not affect the substantive law of defamation, which applies to communications on social media platforms such as Twitter just as it does to communications on more traditional media – newspapers, radio, and television. Social media is not a defamation-free zone.
[41] I emphasize this point because the motion judge’s comments appear to suggest otherwise. Indeed, the motion judge seems to have discounted the appellant’s interests because he chose to communicate on Twitter. This is evident at several points in the decision, beginning with the rhetorical question he posed at the outset: “[C]an one who freely wades into the choppy waters of Twitter complain about getting splashed”? Later in his reasons, the motion judge observes that the appellant “has delved into a very harsh medium by expressing his views on Twitter – a medium where outlandish criticism is the norm.” The motion judge discusses the nature of Twitter, describing it as “a rhetorical environment”, a “schoolyard-like atmosphere”, and “a rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken”. He concludes by answering the rhetorical question he posed earlier: the appellant “jumped into the turbulent river of Twitter commentary with some vulgarly worded observations … He got it back as good as he gave it, and got wet in the process.”
[42] These remarks read almost as an assertion of volenti non fit injuria – as though those who choose to communicate on Twitter know what they are getting into and so cannot complain about the way in which they are treated. In effect, they consent to the risk of being defamed.
[43] This is not so. The question is not whether the appellant consented to a risk of being defamed by communicating on Twitter or any other medium but, instead, whether the appellant can establish that he should be permitted to continue his defamation actions. The answer to that question does not depend on social media standards of behaviour. It depends on whether the appellant can satisfy the merits-based and public interest hurdles set out in s. 137.1 in the specific circumstances of this case.
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[96] .... what we have here is an exchange between private parties on a social media platform, and a likelihood that substantial harm may have occurred. This is not the first time that this has happened and it will not be the last. It is not to be excused simply because it occurred on social media. As I have said, the law of defamation applies to social media just as it does to publication in more traditional media.
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