Posts tagged defamation

SCC hyperlink decision has implications for educators


The blogosphere has had two weeks now to digest the recent ruling of the Supreme Court of Canada in Crookes v. Newton (CanLII), where the high court ruled that simply the act of hyperlinking to defamatory material elsewhere on the internet does not alone constitute defamation.  The decision upholds the rulings of two lower courts, so the outcome is not necessarily a surprise; however, the details of the decision have broad implications for anyone who posts commentary online. 

Educators, in particular, should pay attention, given that teaching is increasingly shifting to become an online activity.  More professors and teachers are blogging than ever before, and students are demanding more and more that materials be made available through the web.

Hyperlinking (Wikipedia) is an active connection or reference to another website through a sensitive word or phrase, allowing the reader to cut directly to additional information relevant to what they are currently reading.  A hyperlink can be “shallow” – i.e. linking to page with relevant articles, like a newspaper’s homepage – or “deep” – i.e. linking directly to a relevant article. 

The relationship of hyperlinking to defamation is timely because the internet, or more significantly the way we use the internet, has created an environment where defamation is easy, simple and common.  In the past, if you wanted to defame an enemy, you generally had to use or be a member of the media.  But current communication technologies provide nearly everyone with access to the tools of defamation.

Here is a summary (The Canadian Encyclopedia) of the ingredients of defamation from Lewis N. Klar, an expert in Canadian tort law:

In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person.  Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished.  This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.

The specific issue in Crookes was the third item in this paragraph, namely whether the plaintiff had established that the defendant had conveyed defamatory meaning to a single third party that had received it.   If nobody hears or reads it, then it’s not defamation.

The facts in this case are fairly straightforward: Crookes claimed that Newton had defamed him by having hyperlinks on Newton’s website to other websites containing allegedly defamatory material.  On first blush, Crookes’ argument makes sense.  If you aren’t allowed to call someone bad names, you shouldn’t be allowed to direct traffic to another site where those names are being tossed around.  But, at the same time, you should be allowed to present a portal to possibly offensive material without taking ownership of everything that appears there.  Freedom of expression vs. the right to protect one’s reputation.  The stuff of interesting judgments.

Justice Abella, who wrote the majority decision in Crookes, had several important comments:

  • The law should not create a presumption of liability for all “hyperlinkers”.  That would seriously curb the free exchange of information.
  • A hyperlink is generally used more as a reference than as a way to reproduce text conveying an idea – that is, it’s more like a footnote than an excerpt.  It establishes a door and does not demonstrate any content set out on the other side.  A hyperlink, then, is “content neutral”. 
  • A hyperlinker can select the destination of the hyperlink but has no control over the content, which may vary from time to time.
  • Consequently, a hyperlinker only publishes hyperlinked material when they reproduce the defamatory content in some way.

The high court ruled that since all Newton did was hyperlink to allegedly defamatory material, his actions were not sufficient to establish “publication”.  

Two other judgments were released by other members of the court, each of which agreed with Justice Abella’s conclusion but emphasized different concerns and arguments.  For example, Justices McLachlin and Fish added that using a hyperlink as a reference should not constitute defamation, but where a secondary author endorses or recommends defamatory material through a hyperlink, well, that’s a different story.  Justice Deschamps expressed concern that Justice Abella’s decision provided too great an exclusion to the rule of publication, and remarked that going after the originator and not the reporter (i.e. the hyperlinker) may be a challenge given the anonymity and global nature of the internet. 

The lesson?  Don’t think you can get away doing indirectly that would get you stung for doing directly.  Trashing reputations is generally not a protected exercise of free expression.  If you are going to play with fire by hyperlinking to potentially toxic material, use the hyperlink as a footnote without taking ownership over the material or sharing too much of it.

Here (The Court) is a link to additional analysis on the judgment.


Employers must tread carefully when trying to protect educators from online attacks


An educator’s workplace involves constant exposure to reputational hazards.  Teachers and professors spend their days in front a generation of students committed to broadcasting their opinions, thoughts and whims about anything and, more importantly, anyone across the indelible medium of the internet.  For professors, in particular, their students are often using their laptops in class, discreetly maintaining their active online social lives and standing ready and willing to comment to anyone who will listen about any particular component of a professor’s presentation, among other things.

Schools, universities and other educational institutions are increasing concerned about how easy, and how common, it is for students to use the internet as a tool to defame, harass and otherwise manipulate their educators by careless, disrespectful or malicious online activity.  Students nowadays use the internet and related technologies the way students used to use, well, nearly everything.  Passing notes is now texting.  Doodled pictures can be posted on facebook.  Rumors are spread by student blogs, not whispered at lunch tables.

In this context, it is tempting for employers to take any and all steps necessary to spare their employees from an online assault.  In the recent case of Windsor-Essex Catholic District School Board & Seguin v. Lentini et al, 2010 ONSC 6364 (see here foran excellent analysis of the case by Shibley Righton LLP), a principal and a school board were awarded damages and costs in relation to harmful comments posted by a student on facebook.  The principal had made an unpopular decision abouta school hockey team, and disgruntled students and parents began voicing their frustrations on facebook.  Those comments quickly devolved into juvenile accusations that the principal had engaged in pedophilia.

The school board stepped in and sent notices of defamation to all offending individuals, nearly all of whom retracted their comments. One former students who had posted most of the comments refused to comply.  The school board then commenced an action in defamation against the student, which was successful. 

In contrast, the recent case of Pridgen v. University of Calgary (CanLII) demonstrates the failure of an educational institution to respond appropriately to online comments about an employee.  The plaintiffs were twin brothers who had both taken a course with an unpopular professor and were dissatisfied.  The brothers each posted comments on facebook about the course and the professor; the comments were childish and disrespectful but not necessarily defamatory.  The professor saw the comments and complained to her superiors.  Subsequently, internal university bodies found the brothers had committed non-academic misconduct, placing them each on probation. 

The brothers applied for judicial review on the basis that the disciplinary measures taken against them violated their right to free expression under the Canadian Charter of Rights and Freedoms.  The Alberta Court of Queen’s Bench agreed that the university had in fact violated the brothers’ right to free expression, acknowledging that online comments by students about the quality of their education should be encouraged within reasonable limits.  Additionally, the Court noted that if the professor had felt defamed she could have commenced an action in defamation against the brothers, an option that neither she nor her employer pursued. 

Educational institutions seeking to protect the reputation of their employees must accept that imposing disciplinary measures against students who post critical comments is not necessarily the appropriate response.  While such measures might have been imposed in Pridgen in an attempt to prevent the nature of the comments from taking a turn for the worse, those comments had not passed the threshold required to justify the university’s response.


University of Calgary appeals facebook charter decision


The Globe and Mail reported over the weekend that the University of Calgary has filed an appeal regarding a recent decision (CanLII) of the Alberta Court of Queen’s Bench that found that the university had violated the rights of two students under the Canadian Charter of Rights and Freedoms by punishing them for criticizing a professor on facebook.  For a comprehensive review of the decision, please see here.

In an article by the Toronto Sun, University of Calgary spokesperson James Stevenson said the purpose of the appeal was not to further punish the students but rather:

[to seek] clarity on the extent to which the Charter applies to its own operations and those of other post-secondary institutions in Canada… As such, the reason for filing the notice of appeal goes well beyond the specific individuals involved… Filing the notice to appeal allows the university more time to study the decision, and how it fits with other similar cases currently before the courts in other Canadian jurisdictions.

Jacob Serebin opined in his blog on Macleans OnCampus that at the moment “no one outside Alberta has any idea how the charter applies to their university” and he welcomes an appeal for the sake of clarifying some of the more ambiguous comments of the court regarding the scope of the Charter’s application.  He writes:

That’s why I’d like to see this case go to appeal. When it comes to these sorts of decisions, appeals courts tend to clarify and think about how their ruling will impact similar cases that lower courts will see in the future, not just the one in front of them.

Consider the following comments by the court in the Pridgen decision:

While the hiring and firing of employees by a university is non‑governmental in nature… the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations [i.e. it is more likely to be governmental in nature].

…The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act…. [The] source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

These comments appear to draw lines in the sand around what spheres of university conduct are subject to the Charter.  Treatment of employees: no.  Disciplinary measures imposed because of student conduct: yes.  But some further clarification would be helpful.  

The students’ lawyer told the Calgary Herald that before this case the general impression among the legal community was that the Charter did not apply to universities, even though courts have never said that in such absolute terms.  That’s true – it just so happens that all the decisions involving charter claims against universities have been rejected or have never properly addressed the issue.  The decision turned some heads and serves as a landmark case but at the end of the day it simply fit within a neatly set out conceptual window created by the courts, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter.  

Let’s see what the Alberta Court of Appeal has to say.


BCTF sues chair of BC College of Teachers for defamation


CBC reported earlier today that the BC Federation of Teachers (BCTF) has commenced a defamation lawsuit against Richard Walker, the current chair of the BC College of Teachers, for comments he made in an opinion piece published in a May edition of the Vancouver Sun.  (A link to the court document filed by the BCTF. which contains excerpts of the opinion piece, is available through the CBC article above.)

In the opinion piece, Walker noted that 270 complaints against teachers from members of the public (through the “person complaint” process) have been filed with the College since 2003 but no teacher has been disciplined, a fact which he alleged raises serious questions about how the BCTF has been using the College illegitimately to protect certain teachers to the detriment of students.  He also argued that changes should be made to the way the College functions in relation to the BCTF, specifically the endorsement by the BCTF of candidates for election to the governing body of the College.  Walker referred to Tom Ellison (Vancouver Sun), a teacher and convicted sex offender, to highlight the need for a procedure to identify and deal with troublesome teachers early on.  The opinion piece, among other factors, prompted Education Minister Margaret McDiarmid to launch a review of the College, which was not supported by the BCTF.

BCTF claims that Walker’s allegation that it interferes with, or bears undue influence upon, the disciplinary process maintained by the College is false and untrue and that BCTF suffered loss as a result on Walker’s defamatory words.

Is it likely a court will side with BCTF?  Here is a summary from the Canadian Encyclopedia of the law of defamation in Canada by Lewis N. Klar, a renowned author and expert on Canadian tort law:  

Defamation law protects an individual’s reputation and good name. Defamation law does, however, restrict freedom of speech. Thus, in deciding defamation actions, the courts must carefully balance these 2 important values…  

With the advent of the electronic mass media, such as radio and television, the difference between the written and spoken word became less important. Widely disseminated speech can cause as much harm as something which is written down. As a result, some provinces have even eliminated any practical distinctions between libel [i.e. written defamation] and slander [i.e. oral defamation].

In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person. Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished. This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.

Even if the claimant can prove those three things, the onus shifts to the defendant to provide a defense.  There are two defenses, among others, that Walker may assert in these circumstances:

  1. It’s the Truth.  Generally, you can’t sue someone to stop them from saying things that are true about you.  The protection of one’s reputation under defamation cannot be stretched that broadly.  Since the onus to prove the truth of the allegations contained in the opinion piece are on Walker, it will be interesting to see what facts are brought in support.
  2. It’s a Fair Comment.  Opinions on matters of public interest that can be honestly-held on the proven facts are protected.  This is a softer defense than the truth – while the truth is an “absolute defense”, the defense of fair comment is eroded if the writer or speaker acted with the intent to injure the target of the comments or otherwise pursue their reputation with malice.  This is addressed pre-emptively by the BCTF in their document filed with the court.

Thus far, only BCTF’s perspective on this matter has been presented in the media.  It will be interesting to see how Walker chooses to respond.  In any event, this news reminds all of us, even in the world of education, that our words carry legal consequences and that in the age of the internet – where everyone with a modem has a megaphone – is becoming increasingly important for us to use those words with caution.


University of Calgary facebook reprimand reaches judicial review


The latest facebook-got-your-tongue litigation making  national headlines (Vancouver Sun) popped up this week from the University of Calgary, where twins – both students – were placed on probation two years ago for stinging comments they made in November 2007 about a professor on a facebook page entitled “I no longer fear Hell, I took a course with [the Professor's name]“.  The comments on the site include suggestions that the professor “got lazy and gave everybody a 65″. 

The professor complained to the interim dean that this was an assault on the professor’s reputation, and the interim dean determined that the twins had used facebook to commit non-academic misconduct and handed down a penalty accordingly.  The Board of Governors declined to hear an appeal of the decision and grant them a formal hearing.  The twins are now seeking judicial review before the Court of Queen’s Bench in Alberta.  Arguments before the court began this past Friday and were adjourned to another date.

The university maintains that the twins made unsubstantiated allegations that violated the school’s student code of conduct.  No formal hearing was required given the nature of the penalty handed down.  In contrast, the twins claim they wrote nothing wrong and the university’s actions smack of procedural unfairness.  The university is trying to place a muzzle on legitimate criticism of professors.

This is a sad picture for a number of reasons:

  1. The university appears to have done a miserable job of explaining its position in the court of public opinion.  While the demands of journalists to write short, punchy news pieces on a tight deadline means that much of the essential facts may get chewed up in the process, there does not seem to be any clear response by the university to several basic questions.  By what authority did the school punish the twins for comments they made online in a non-academic forum?  How broad is this power and how else has it been used?  Does the university consider the comments to be defamation or a milder form of wrongdoing that nonetheless violated the student code?  What sort of online criticism of professors is permitted under the code?  You cannot control how much of your side of the story the media decides to tell, but you better use any resources you have to stream it into the marketplace.  The U of C website showed no recent press release asserting its view of the matter.
  2. The twins are in the uneasy position of having to justify publicly why they made seemingly juvenile comments that have likely impacted the professor’s livelihood in a meaningful way.  Many students use facebook the way baby boomers, in their student days, used – well – talking.  Students have traditionally made fun of unpopular professors and criticized them unfairly, but usually only in a somewhat private setting – students nowadays would never dream of splashing those comments across the national media, which is exactly what has happened in this case.  As much as the university has to justify its response to the comments, the twins have to defend the comments as legitimate.

The best advice I have ever heard about making online commentary is never post anything that you would not want to see appear after your name on the front page of a major newspaper.  Facebook has entered the courtroom in many ways, particularly to the detriment of student users.  For example, in MacIntyre v. Pitt Meadows Secondary School (CanLII), a recent decision of the Supreme Court of British Columbia involving a student’s claim for compensation for an injury suffered in shop class, the court relied heavily on photos posted on facebook as evidence showing the student shortly after the accident being physically and socially active.

Students have the freedom to criticize their professors in public, but it has never been easier for those comments to cross the line into something more troublesome and they must be aware not only of the rules surrounding a tort like defamation but also the rules of the school they attend that form part of their educational contract.  School administrators must establish policies governing this new venue for commentary.  Although it is difficult to glean from the media reports enough information to draw concrete conclusions in this case, universities – in Alberta, British Columbia and the rest of Canada – are looking to a court decision arising from the University of Calgary’s travails that will provide further guidance in setting the appropriate course.


Choosing the right forum is half the battle


Gone are the days when getting justice in your dispute meant you had to face the regular court system.  Now, it seems like everybody is a judge of something and quasi-judicial entities abound.  Organizations have internal panels to handle complaints.  Administrative agencies have specialized tribunals to deal with industry-specific issues.  Courts appreciate the wisdom of a less expensive and uniquely-oriented body having first crack at an issue that can only reach a judge on appeal.

In the educational context, the common first move in court by counsel for institutions is to argue the dispute should not be heard by the court; that is, the court should decline to exercise its jurisdiction in this matter because it is more properly dealt with elsewhere.  Where a dispute has already been heard before a specialized tribunal (e.g. a university senate committee), courts will defer largely to that tribunal’s judgment.

Many of the issues that arise within education law involve an apparent overlap in jurisdiction between several adjudicative bodies.  Several recent judgments show courts declining jurisdiction when they determine the core of a dispute to lie within the jurisdiction of another body:

  • In Jaffer v. York University, a student with Down syndrome alleged a tort and breach of contract by the university for its failure to accommodate him.  The Ontario Superior Court of Justice agreed with counsel of the university that the student was effectively making a human rights claim, which should be heard before the provincial human rights tribunal.
  • In Abrams v. Johnson, a teacher brought a defamation claim against principals and school board administrators.  The Alberta Court of Queen’s Bench agreed with the defendants that the claim involved, in essence, an employment dispute.

In both Jaffer and Abrams the claims by the plaintiffs involved elements that were within the jurisdiction of the courts, but upon scrutiny in each case the courts determined that they were more properly dealt with by other bodies. 

To reduce legal fees and proceed quickly, parties to disputes within the world of education must make sure their claims are brought before the right adjudicator.

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