Cyberdefamation: Public servants face new risk in online environment

Public servants are increasingly online either to serve Canadians or to communicate within government The connected world offers great rewards but frequent users of Internet e-mail, websites, chat rooms and electronic bulletin boards face new legal risks. An important one is liability arising from defamation, also known as libel and slander.

The law of defamation deals with damage to a person's reputation. The field is complex and serious, attracting massive damage awards, so public servants should be aware of some basics to minimize the risks to themselves and their employer.

A statement is defamatory if it "tends to lower a persons reputation in the estimation of right-thinking members of society generally, or exposes a person to hatred, contempt or ridicule.' Generally, a statement that portrays someone as a bad person, untrustworthy or as a criminal will be considered defamatory.

The writer or speaker of the defamatory statement, their employer and any person who repeats the defamation are all potentially liable for damages awarded by a court or arising from a negotiated settlement. Recently, damages for defamation have increased dramatically - into the six or even seven digit range. Damage is presumed to arise automatically from a defamatory statement. The defaming party may not have intended to cause harm, but if intent or malice motivated the defamer, then a court award for damages will be considerably higher.

As well, the victim of the defamation need not demonstrate a loss. The law presumes that everyone has a good reputation and will therefore award damages regardless of the impact. However, if the victim can show a specific loss arising from the defamation, or demonstrate that the words had a greater capacity to cause them damage, then greater damages will be awarded.

Once defamation is found, the law considers any "defences" or justification for the defamatory statement. The most commonly known is the complete defence of truth.

Qualified privilege is another important defence. While not a complete defence, this allows a person to make defamatory statements where they have a duty to do so, i.e., a public servant may deliver a report to a superior criticizing the performance of a contractor, even if the report is false. It will not serve as a defence if the defamatory statement is motivated by malice or if the scope of the statement is unnecessarily wide. The statement must be delivered only to those persons to whom there is a duty to report and the statement must be restricted to the subject matter upon which there is a duty to report.

The ease of publishing a message on the Internet, the informality of most e-mails, the instant global audience, the danger of accidental republication and the detailed record of the movement of e-mails combine to create previously unknown risks in the world of defamation law. As well they serve to dramatically increase the chance that defamation will occur.

it would be wise to treat any message placed on the Internet or closed electronic forum with caution and to avoid making derogatory comments about people or businesses and then transmitting such statements electronically. The statements may reach unintended persons with disastrous consequences or, even worse, end up in a jurisdiction where defamation laws and damage awards are more extreme than in Canada.

If you must write something derogatory about another person, limit your comments to what you believe you are duty bound to state and limit the number of people who will receive your comments. And it may be prudent to place a bold statement on your e-mail stating that private and confidential material is contained and that retransmission should not be made. In fact, if you believe that what you must report could be inflammatory, consider delivering the message verbally or in a paper memorandum, not electronically.

And lastly, if you must deliver a derogatory statement to someone outside your immediate work group, or if you have doubts about the potential danger of your statement, consider consulting your supervisor or legal counsel before making any statement.

Peter N. Mantas is a lawyer with the Ottawa office of Heenan Blaikie. This article is intended to provide general information only and should not be relied upon as legal advice.

Copyright Summit Group Mar 2001
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