Social Media in 2010 – No Surprises, Just Evolution

The Scoop, JD Supra's legal marketing blog, has today published its annual year-end summation, What Surprised You In 2010? Perspectives from Legal Professionals.

Today's Scoop post contains excerpts from many, varied contributors to this annual legal thought-fest. The complete, extended commentaries can be downloaded here, in PDF and MS-Word formats.

Canada's representatives this year include Steve Matthews, Jordan Furlong, and myself. Thanks to Adrian Lurssen and the good folks at JD Supra for including my thoughts once again in 2010.

My contribution to the mix, 2010 – No Surprises, Just Evolution, is reproduced below.

- GJW

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2010 – No Surprises, Just Evolution

There were no great surprises in 2010 for lawyers who’ve had their fingers on the pulse of the social media world - just a natural progression.

The once-radical thought that there is a bona fide professional use for social media in the legal profession has been mainstreamed and normalized. Lawyers’ participation online has exploded into an ever-increasing offering of blawgs, tweets, and social media updates.

In fact, as I suggested in an October 2010 post, Social Media and the Legal Profession: Where are We Today?, the primary challenge ahead is no longer about participation; rather, it’s about integrating our multi-platformed online presentations:

Once you have a website and blog, are on Facebook, LinkedIn, Twitter, YouTube, Digg, etc., how do you tie it all together - with the least amount of extra hands-on effort - into a cohesive, seamless and consistent presence that establishes a brand or identity that is both authentic and digestible for readers?

In a natural, logical evolution, the modern world continues to pull lawyers and our courts into this tech-centric 21st century.

Within the last year or so, courts in Canada, the UK, Australia and the USA have permitted journalists to live blog, text-message and tweet from the courtrooms. Canada’s Supreme Court has recognized that bloggers are afforded “responsible journalism” free-speech protections; similarly, bloggers have been held accountable for defamatory publications that have crossed the line.

In some cases, courts have authorized service of legal documents via Facebook. Facebook, itself, has responded to document-retention and electronic discovery requirements by introducing a Download Your Information feature, enabling retrieval and local storage of each user’s Facebook content. Privacy advocates won a series of public battles over the protection of private information on social media sites. Courts have ordered “virtual child visitation” via Skype. And, in Ohio, judges received a green light to “friend” lawyers on social media sites. In South Carolina, Florida and other jurisdictions, it is not so clear.

Looking ahead, this evolution will no doubt continue in 2011.

In the legal profession, greater attention will be focused on the ethical do’s and don’ts of lawyers’ social media participation. We will consider whether blawging should count toward lawyers’ mandated CLE requirements. And our courts and governments will struggle with (and attempt to draw defined lines in the sand) in this brave new world of instant communications, democratized access to publication tools, and blurred distinctions between the public and the private.

Finally. the emerging WikiLeaks debate – is it journalism or espionage? - is likely to be the spark at the center of a crucial, dramatic discussion ahead that will do much to define where we, as a society are heading, online and offline.

It will continue to be fascinating to watch the developments unravel in real time.

- Garry J. Wise, Toronto

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Blogging, Responsible Journalism and Damages for Libel

The wild, wild west of the Canadian blogging wilderness is clearly being tamed by the Ontario Superior Court of Justice.

In separate rulings issued in the past week, two well-known Canadian political bloggers have been found liable for defamation arising from posts on their blogs.

The November 18, 2010 ruling of Ontario Superior Court Justice Robert Smith in Giacamo Vigna v. Ezra Isaac Levant finds the Defendant, blogger and lawyer Ezra Levant, liable for damages in the sum of $25,000.00 for defamatory blog posts, and provides a thorough discussion of the law of libel, as it affects bloggers and journalists:

[140] The fact that Levant is a lawyer is an aggravating factor as he either knew or should have known that continued ridiculing of another lawyer using the internet, and accusing another lawyer of fibbing to the Tribunal, of acting with contempt and acting unethically before a Tribunal, without making a diligent inquiry to verify that his facts were accurate and true, and when he used the manner in which Vigna requested an adjournment in order to further his objective of denormalizing Human Rights Commissions was defamatory conduct. He also continued to republish the same inaccurate statements after he was given notice they were considered defamatory and he was asked to stop.

The Judgment is worthy of a careful read. Omar Ha-Redeye has a thorough analysis of the case at Slaw.

Similarly Mr. Justice Dennis Power's November 23, 2010 default endorsement in Robert Day v. Patrick Ross, while brief (as the action was undefended), leaves little room for doubt as to the courts' willingness to assess significant damages for defamation, where malice is proven:

... The Defendant's conduct detailed in the Statement of Claim and in this motion was clearly malicious. His conduct in this litigation was, as well, malicious.

In the Day case, initiated by the writer of the Canadian Cynic blog, damages of $75,000.00 were assessed against blogger Patrick Ross, together with costs of $10,000.00.

In both cases, the offending bloggers were also ordered to remove the impugned blog posts.

- Garry J. Wise, Toronto

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Toronto Mayoral Candidate Rob Ford To Be Sued For Libel?

George Foulidis, a local Toronto businessman, is threatening to sue Toronto mayoral candidate and city councillor Rob Ford for libel.

It is alleged that Ford has repeatedly asserted during the mayoral campaign that Tuggs Inc., Foulidis' family business, improperly influenced city politicians to obtain an exclusive vending contract for a Beaches-area restaurant.

Canadian libel law differs from American libel law in that proof of malicious intent is not required to successfully prove defamation. In the USA, the "proof of malicious intent" standard requires that an alleged libeler be reckless or actively negligent in the course of investigations related to the defamatory statement.

The Supreme Court of Canada rejected this standard in Hill v. Church of Scientology in 1995, and maintained the Canadian standard, which requires demonstration only that the statement lowered the public esteem of the allegedly defamed individual. (However, we have since adopted a parallel "responsible communication" defense, as noted below.)

If lowering of public esteem can be successfully proven, a defendant in a libel proceeding may rely upon the following defenses:

1. Justification. This is pretty straightforward: the defendant demonstrates that the impugned statement was true. A true statement, by definition, cannot be libelous. (This is why Foulidis, in his press statement, challenged Rob Ford to prove his assertions; if Ford could do so, the action would not commence.)
2. Fair comment. The defendant demonstrates that the statement, rather than being an assertion of fact, was an assertion of opinion. For example, if I said that I believe George Clooney is a horrible actor, and Clooney then sued me for libel, I would defend myself by saying "I wasn't asserting Clooney's horribleness as fact. I was merely stating my opinion of Clooney's acting." (P.S.: George Clooney is in fact a terrific actor and seems like he would be fun to hang out with.)
3. Privilege. Since Rob Ford did not deliver his comments while under oath in a court of law, he can't use this defense.
4. Responsible communication. This is the newest of libel defenses, established at common law by the Supreme Court in Grant v. Torstar Corporation last year. It allows a defense if the defendant undertook to communicate on a matter of public interest, in a responsible and diligent manner, bearing in mind such factors as the importance of making the statement, the urgency of the issue, the reliability of the source of information, and whether the Defendant sought out and reported on the Plaintiff's side of the story.

- Christopher Bird, Toronto

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Supreme Court of Canada To Bloggers: Act Responsibly

The Supreme Court of Canada explicitly addressed bloggers in two companion decisions yesterday that may well have revolutionized Canada's libel law landscape by adopting a new "responsible journalism" defence into Canada's common law.

Chief Justice McLachlin articulated the new rules of the road - for bloggers and traditional journalists, alike - in Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 6:

[62 ...The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. As Kirby P. stated in Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680 (C.A.), at p. 700: “The law of defamation is one of the comparatively few checks upon [the media’s] great power”. The requirement that the publisher of defamatory material act responsibly provides accountability and comports with the reasonable expectations of those whose conduct brings them within the sphere of public interest. People in public life are entitled to expect that the media and other reporters will act responsibly in protecting them from false accusations and innuendo. They are not, however, entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose. (emphasis added)

This appears to be the first time the Court has directly addressed Canada's bloggers, although a CanLII search did disclose one previous reference to blogs by the court. See its June 2008 ruling in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420:

[73] This is all the more true in an age when the public is exposed to an astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians’ satire, to a high school student’s blog. It would quite simply be wrong to assume that the public always takes statements of opinion at face value. Rather, members of the public must be presumed to evaluate comments in accordance with their own knowledge and opinions about the speaker and the subject of the comments. (emphasis added)

Thus, it appears that from the vantage point of the Supreme Court, Canada's archetypal blogger has now, finally and gratefully, moved beyond high school.

Happy graduation.

- Garry J. Wise, Toronto

Update:

Also see James Morton and Warren Kinsella on these SCC rulings.

- GJW

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Supreme Court of Canada: "Responsble Journalism" is a Defence to Libel Action

In two groundbreaking decisions today, the Supreme Court of Canada has expanded free speech protections for journalists and new media writers by affirming a new, responsible journalism defence in libel actions.

In Quan v. Cusson, 2009 SCC 62, a unanimous court held:

The defence of responsible communication on matters of public interest recognized in Grant v. Torstar Corp. is applicable where the publication is on a matter of public interest and, having regard to the relevant factors, the publisher was diligent in trying to verify the allegations. The public interest test is clearly met here, as the Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. The defendants’ liability therefore hinges on whether they were diligent in trying to verify the allegations prior to publication, and it will be for the jury at a new trial to decide whether the articles met this standard of responsibility.

Chief Justice Beverley McLachlin's ruling emphasizes that while it may not be necessary for journalists to get every single fact correct in order to escape liability for libel, a heavy onus will remain upon them to establish diligent efforts to verify information that is published:

A. The Defence of Responsible Communication on Matters of Public Importance

[28] In Grant, at para. 126, we hold that the defence of responsible communication on matters of public interest applies where:

A) The publication is on a matter of public interest, and

B) The publisher was diligent in trying to verify the allegation, having regard to:

a) the seriousness of the allegation;

b) the public importance of the matter;

c) the urgency of the matter;

d) the status and reliability of the source;

e) whether the plaintiff's side of the story was sought and accurately reported;

f) whether the inclusion of the defamatory statement was justifiable;

g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

h) any other relevant circumstances.

... [31] ...The Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. While the subject of the Ottawa Citizen articles was not political in the narrow sense, the articles touched on matters close to the core of the public’s legitimate concern with the integrity of its public service. When Cst. Cusson represented himself to the New York authorities and the media as an OPP or RCMP officer, he sacrificed any claim to be engaged in a purely private matter. News of his heroism was already a matter of public record; there is no reason that legitimate questions about the validity of this impression should not have been publicized too.

[32] That being the case, the defendants’ liability hinges on whether they were diligent in trying to verify the allegations prior to publication. As explained below, it will be for the jury at a new trial to decide whether the articles met the standard of responsibility articulated in Grant. Further evidence of the steps taken by Quan and Egan may have to be adduced in order to provide a satisfactory record upon which their conduct can be judged.

Also see the Court's ruling today in the companion case of Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 6, referenced in the Cusson decision.

National Post comments on these important rulings:

Journalists or Internet bloggers who are sued for libel or slander will no longer have to prove in court the absolute truth of every allegation in a report. Instead, they can rely on the new defence if the issue is of public importance and they took proper steps to verify the information.

The court said Canada's defamation law must better balance freedom of expression against the need to protect a person's reputation and privacy.

..."I conclude that the current law, with respect to statements that are reliable and important to the public debate, does not give adequate weight to the constitutional value of free expression," wrote Chief Justice Beverley McLachlin in the unanimous decision.

The new defence will not give free license for journalists to make mistakes. They will still have to show they acted responsibly in their reporting on public interest issues.

..Once a judge establishes a public interest, the responsibility of the reporting must be tested based on eight factors set out by the Court, including the seriousness of the allegation, the trustworthiness of the source, the urgency of the issue and the attempts taken to obtain a response from the subject of story.

For further reading, see our November 14, 2007 post on the Ontario Court of Appeal's ruling in Cusson: Ontario Appeal Court: Press Has "Public Interest Responsible Journalism" Defence to Libel.

- Garry J. Wise, Toronto

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