INTRODUCTION
Social media offers a platform for the sharing of information; however, the use of social media presents unique and significant legal challenges and potential liability, including the issues of jurisdiction and defamation.
In Durand v Higgins, 2024 ABKB 108 (“Durand”), the Alberta Court of King’s Bench found an individual liable for defamation for reposting second and third-hand allegations on social media and awarded extensive damages, in the total amount of $1,500,000.00. This case is a reminder that online defamation attracts the same consequences as traditional forms, and illustrates how the Court addresses jurisdictional challenges in such cases.
FACTS
The plaintiff in Durand was a Québec-based electronic music artist who performed under the stage name “Snails.” An Instagram account titled “@evidenceagainstsnails” reposted and commented on second or third-hand allegations of sexual misconduct against the plaintiff, which were intended to and had the effect of “cancelling” his career. The Instagram account was operated by the self-represented defendant, a California resident who had never met the plaintiff and who did not have first-hand knowledge of the allegations reposted on the Instagram account.
DECISION & ANALYSIS
1. JURISDICTION
This case was litigated in Alberta despite the fact that neither the plaintiff nor the defendant lived in the province. The defendant raised the issue of jurisdiction, but did not specifically identify a more appropriate forum. The Court exercised its jurisdiction on the basis that it had jurisdiction over the dispute (jurisdiction simpliciter) and that it should exercise its jurisdiction rather than deferring to a more convenient and just forum (forum non conveniens).[1]
(a) Jurisdiction simpliciter
Jurisdiction simpliciter exists where there is a real and substantial connection between the dispute and the forum. In the context of tort claims, the Court identified four connecting factors that can presumptively establish a real and substantial connection to Alberta, if any one of them is present:
- (i) the defendant is domiciled or resident in the province;
- (ii) the defendant carries on business in the province;
- (iii) the tort was committed in the province; and
- (iv) a contract connected with the dispute was made in the province.[2]
The presumptive factual connection arising from each of these factors may be rebutted by the party challenging jurisdiction by showing that there is no real relationship – or only a weak relationship – between the subject matter of the litigation and the forum.[3]
In determining whether a tort was committed in Alberta, so as to establish one of the connecting factors, the Court held that defamation through social media posts is deemed to occur where the defamatory statements are read, accessed or downloaded.[4]
The Court found that it had presumptive jurisdiction because the posts from the Instagram account tagged, and were directed at, concert promoters in Alberta. The Court inferred that the concert promoters viewed and considered the Instagram posts in deciding to cancel the plaintiff’s concerts in Alberta.[5]
(b) Forum non conveniens
If jurisdiction simpliciter is established, then the Court must determine whether another forum is more appropriate or preferable. The party raising the issue of forum non conveniens must demonstrate that the alternate forum is “clearly more appropriate.” To meet this threshold, the moving party must show that it is fairer and more efficient to proceed in the alternate forum proposed.[6]
As set out above, the defendant did not propose an alternate forum; nonetheless, the Court considered whether California would be preferable.
The Court held that the following factors should be considered when determining whether one forum is more convenient than another:
- (i) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;
- (ii) the law to be applied to issues in the proceeding;
- (iii) the desirability of avoiding multiplicity of legal proceedings;
- (iv) the desirability of avoiding conflicting decisions in different courts;
- (v) the enforcement of an eventual judgment; and
- (vi) the fair and efficient working of the Canadian legal system as a whole.[7]
After reviewing the above-noted factors, the Court was satisfied that it was both permissible and appropriate for the Alberta Courts to take jurisdiction over the dispute:
Finally, considering institutional resources and integrity, I find that it is fair and efficient for this case to proceed in Alberta. Mr. Durand is a Canadian citizen who suffered losses in this Province as a direct result of the allegedly tortious conduct committed here and he is entitled to his day in court. This case does not present a large draw on judicial resources relative to its importance to the parties and its connection to the jurisdiction. There is no good reason it should not be heard here.[8]
2. DEFAMATION
The plaintiff in a defamation action must prove that:
-
-
- (i) the words complained of were defamatory, in the sense that the words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
- (ii) the defamatory words in fact referred to the plaintiff; and
- (iii) the words were published, meaning that the words were communicated by the defendant to at least one other person.
-
If these three elements are established on a balance of probabilities, then falsity and damages are presumed and the onus shifts to the defendant to justify the defamatory publication.[9]
The Court in Durand granted summary judgment in favour of the plaintiff, finding that the Instagram posts were defamatory in their natural and ordinary meaning and/or by innuendo.[10] To this point, the Court had “no difficulty finding as a fact that the purpose, intention, and effect of the Instagram Account was to brand Mr. Durand a creep and a criminal.”[11]
The Court confirmed that a person who reposts a defamatory statement is liable to the same extent as the person who originally published it, unless it is clear that the statement was not adopted by the reposter:
There appears to exist a common misconception amongst social media users that reposting defamatory content generated by others is a protected activity, under the doctrine of fair comment or otherwise. This misunderstanding should be corrected as firmly as possible. A repetition, republication, or repost of a defamatory statement is every bit as defamatory, and every bit as subject to liability in tort, as the original statement. “No one is justified in stating false facts about another merely because someone else has done so”[12] [emphasis added] [citations omitted].
The reposter will not be held liable under this rule where the publication is on a matter of public interest and the reposter was diligent in trying to verify the statement (known as the defence of responsible communication).[13] The Court held that unless the defendant complied with the requirements of the defence of responsible communication, the “fact that she defamed by repost, rather than through original content, did not shield, excuse, or exculpate her actions in any way.”[14]
The comments on the defamatory posts were, in many cases, equally defamatory. While the plaintiff did not seek to extend vicarious liability to the defendant for the comments, the Court noted that the comments and the lack of response to or removal of same supported the conclusion that the defendant understood and intended that the Instagram account would “cancel” the plaintiff.[15]
The Court considered the defamation defences of truth, fair comment, qualified communication and responsible communication, but ultimately found that none applied.[16]
3. DAMAGES
The Court awarded damages in the total amount of $1,500,000.00, which included damages for loss of income in the amount of $1,000,000.00, general damages in the amount of $350,000.00 and aggravated damages in the amount of $150,000.00.[17] These amounts are significant, and reflect evidence from the plaintiff showing the real impact of the statements on his career and his psychological well-being, all of which was unchallenged by the defendant.
In determining pecuniary damages on account of loss of income, the Court found that unlike many defamation cases, which are traditionally difficult to quantify with respect to losses, the plaintiff was actually able to “identify and prove direct pecuniary loss attributable to the defamation,” that it was the “dominant cause” of his “career decimation,” and that it had a “seven-figure impact” on the plaintiff’s career.[18]
In determining non-pecuniary damages, the Court noted that a “large” general damages award was warranted, citing the factors established in Elkow v Sana, 2020 ABCA 350, being the plaintiff’s position and standing, the nature of the libel, the mode and extent of the publication, the possible effects of the libel statement upon the life of the plaintiff, and the absence or refusal of an apology.[19] In setting a general damages award in the amount of $350,000, the Court in Durand noted as follows at paras 155 and 161:
[155] . . . The libels were of the most serious nature, related directly to Mr. Durand’s public standing, were systematically spread on the Internet over an extended period of time, caused enormous professional losses, and have been accompanied by threats of further defamation rather than any apologies or retractions.
…
[161] In Mr. Durand’s case, the memory of these allegations, and the professional “nightmare” they caused, no doubt will linger within the music industry and amongst his fan base, irrespective of whatever vindication this judgment may offer.
The Court also found that the defendant’s actions became “high-handed, spiteful, or malicious,” particularly as she continued to ignore information to the contrary and pursued a campaign “on the strength of the flimsiest online dross,” which worsened the plaintiff’s psychological suffering.[20] For this reason, aggravated damages in the amount of $150,000 were also awarded.
TAKEAWAYS
The Durand decision confirms that a party can be held liable for defamatory statements posted and reposted on social media, with the potential of substantial financial repercussions to the defendant. It also demonstrates the difficulties in determining the appropriate jurisdiction for any resulting litigation.
Businesses and individuals should be diligent in confirming the accuracy of the content that is posted and reposted on their social media accounts. Comments on posts and reposts should also be monitored, particularly given that the Court in Durand suggested it may be possible to extend vicarious liability to social media account owners for defamatory comments made on their posts.
For further questions about these issues, please contact Miller Thomson’s Commercial Litigation Group.
[1] Durand v Higgins, 2024 ABKB 108 at para 14.
[2] Ibid. at para 22.
[3] Ibid. at para 25.
[4] Ibid. at para 23.
[5] Ibid. at paras 23-24, 28.
[6] Ibid. at para 34.
[7] Ibid. at para 35.
[8] Ibid. at paras 50-51.
[9] Ibid. at para 64.
[10] Ibid. at para 74.
[11] Ibid.
[12] Ibid. at para 70.
[13] Ibid. at paras 44, 127-128.
[14] Ibid. at para 73.
[15] Ibid. at para 75.
[16] Ibid. at paras 122-128.
[17] Ibid. at paras 135-164.
[18] Ibid. at para 147 and 151.
[19] Ibid. at para 154, citing Elkow v Sana, 2020 ABCA 350 at para 21.
[20] Ibid. at para 163-164.
