Introduction

In a recent case, the Ontario Court of Appeal considered whether the publication of a “News Release” by a parent on the internet contained defamatory statements for which she could be held liable.1

A parent of a Downs Syndrome child and a children’s rights activist were engaged in an ongoing dispute with the Ottawa Carleton District School Board. The conflict involved issues as to what school the child should be placed in, what grade she should be placed in, whether she should be placed in French Immersion or should be taught in English and the nature of the supports and services that should be provided to her. The Board had placed the child in the English program at her school. As a result, the parent and activist published a “News Release” to intimidate the Board into complying with their demand that the child’s placement in the French Immersion program be maintained. The parent and activist posted a “News Release” online and also disseminated copies by email to Trustees, Board administrators, principals, vice-principals and Members of Parliament. The Board commenced a legal action on behalf of a Principal and Superintendent of Instruction, as well as in its own name.

The educators argued that the “News Release” contained four defamatory statements:

  1. That the principal and superintendent had been held in contempt of court;
  2. That the principal was under police investigation for “criminal conduct”;
  3. That the school placement in the English program had become unsafe for the child;
  4. That the Board had conceded on their request to allow the child to continue the French Immersion program after receiving notice of intended litigation.

The parent and activist also attached a seemingly official “order” which included a purported sentence for jail time.

Ontario Superior Court of Justice

At trial, Justice G.R. Morin of the Ontario Superior Court of Justice found that these four statements constituted defamation. The trial judge concluded that the posting of the “News Release” was undoubtedly a joint effort on the part of both the parent and activist. The defences to defamation include: justification, or proof that the statements are in fact true; fair comment, or proof that the comments form an honest and fair opinion that is based upon facts that are true; and qualified privilege, or a legal, moral or social duty to publish the statements and a corresponding public interest. The Court held that none of these defences were available to the parent and activist in these circumstances and, as such, Justice Morin awarded general damages of $15,000 to each of the plaintiffs and special damages claimed by the Principal. He made the following comments about the particular hardship suffered by the educators:

The plaintiffs are professionals and have exemplary reputations in the profession of teaching. Their professional reputations have been attacked and the attacks have gone to the core of their professional reputations.

In addition to damages, Justice Morin made the following orders:

  1. An order requiring the defendants to remove all defamatory material from any website over which they have control;
  2. An interim and permanent injunction preventing the defendants from republishing defamatory statements about the plaintiffs on any website or in any other medium otherwise communicating or publishing false and defamatory statements about the plaintiffs;
  3. An order requiring the defendants to issue a public retraction of the “News Release” to be published at their own expense in local newspapers within 60 days of the date of the judgment;
  4. An order requiring the defendants to issue a public apology to the plaintiffs to be published at their own expense in local newspapers within 60 days of the judgment.

Ontario Court of Appeal

The parent appealed the trial decision to the Ontario Court of Appeal on a number of grounds; however, the Court heard only one issue. The Court focused on the parent's claim that she did not participate in the publication of the libel and that the activist alone had communicated the defamatory statements. At trial, the activist gave evidence demonstrating that she had written the “News Release” and carried sole responsibility for publishing it. The parent concurred in her evidence. The trial judge assessed this evidence and ultimately concluded that the parent had provided all of the information to the activist in advance of publication, that the parent possessed a complete awareness of the document before publication, and that she fully agreed to its communication. As a result, the trial judge held that the parent and activist had jointly contributed to the defamation.

The Court of Appeal affirmed the conclusion of the trial judge on this issue. The Court found that the trial judge had rejected the evidence given by the parent and by the activist as “incredible”, which did not amount to reversible error. The Court upheld the finding of joint and several liability for the damages, notwithstanding that it was the activist who had written and posted the “News Release”.

The parent’s application for leave to appeal at the Supreme Court of Canada was dismissed without reasons on December 4, 2008.

Implications of this Decision

This case underscores several implications for teachers and other school officials in the context of online communication. The Court of Appeal ruled that the parent could not avoid responsibility for her participation in the defamation by merely blaming the activist. The Ontario Superior Court emphasized the importance of reputation to educators and acknowledged the harm that may occur when their professional reputations have been attacked.

It is unclear whether a publication on the internet constitutes a “broadcast” for the purposes of the Libel and Slander Act; however, the Courts have held that emails do not represent “broadcasts”. Under this legislation, notice must be provided to the defendants within six weeks of discovering a controversial message before anyone can bring an action for defamation. The plaintiff cannot obtain relief if proper notice is not provided. Due to the uncertainty at this time about communications online, it would be prudent in cases of potential defamation to send written notice immediately to ensure that this provision does not prevent a remedy.

“Cyber” defamation produces unique effects because it allows the messages to be communicated through a medium that is more pervasive than print. Defamatory statements made online cannot easily be erased. It can be nearly impossible to determine who has downloaded the material and redistributed it elsewhere. The trial judge in this case made several key comments regarding online communication:

The defendants used the internet to launch those attacks and it is acknowledged that there is an increased potential for harm when the publication is by way of internet. There has been no retraction or apology on the part of the defendants and the offending materials continue to be posted on a website.

Plaintiffs cannot ascertain the identities of all the people to whom the defamatory messages were communicated on the internet and cannot take comprehensive steps to restore their reputation and correct false statements. Given the nature of the internet, there can be no guarantee that the material has been permanently removed. These factors make “cyber” defamation difficult to resolve and, in an era of fast-paced technology, the Courts will inevitably provide further guidance as to the remedies available to individuals who have been victimized online. This decision represents an encouraging step towards protecting educators in such circumstances.