Be careful about what you say or post – it could land you in court

By Tony Poland, LegalMatters Staff • Potential whistleblowers and those considering making derogatory public statements at the end of an employment relationship should choose their words carefully or risk a defamation lawsuit, says Toronto employment lawyer Ellen Low.

Low, principal of Ellen Low & Co., says there are cases where people feel the need to vent but may be unaware of the legal ramifications of “going public.”

“I would strongly caution people thinking about sharing information with the news media or posting something online to have a conversation with a defamation or employment lawyer first,” she tells LegalMattersCanada.ca. “If not, they could inadvertently be exposing themselves to legal action based on those comments.”

Low says defamation “comes up in my practice in a couple of different ways” as it relates to employment law.

Derogatory statements can be grounds for a lawsuit

“If the employer says something derogatory or defamatory about an employee that might adversely affect their ability to secure new employment, that could be grounds for a lawsuit,” she explains. “Conversely a person could find themselves in trouble for saying things that are objectively untrue about the employer or their experience in that workplace.

“There are also instances where people seek my advice about going to the press as whistleblowers,” Low adds. “In those cases, I would have a long conversation about what that looks like and whether comments made to the media would be protected, privileged or subject to a defamation lawsuit by the employer.”

She says there are nuances of defamation law that the average person might not fully understand. As well, Low notes that courts are “still grappling with the need to balance protected grounds rights with freedom of speech rights.”

Under the Ontario Human Rights Code people are protected from discrimination in five social areas –  employment, housing, services, unions and vocational associations and contracts.

Discrimination based on 17 different personal attributes, or grounds, is against the law. Those protected grounds are “citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment),” according to the Ontario Human Rights Commission.

Not always in the public’s best interest

Low says there can be a fine line between speech that is in the public’s best interest and what is defamatory. There are also laws people might not be aware of, such as Ontario’s anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation, she says.

“I don’t believe the general population is aware that the legislation exists,” Low says. “It is not necessarily new but it is pretty niche.”

Anti-SLAPP was introduced in 2015 giving judges the power to dismiss lawsuits if the defendants can convince the court that the action arises from an expression that relates to a matter of public interest.

According to the legislation, anti-SLAPP provisions:

• encourage individuals to express themselves on matters of public interest;
• promote broad participation in debates on matters of public interest;
• discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
• reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

“SLAPP lawsuits are sometimes brought more in an attempt to silence critics by forcing them into a protracted litigation battle that could be costly and time-consuming,” Low says. “The purpose of anti-SLAPP legislation wasn’t necessarily about justice. It was really to essentially truncate or eliminate these protracted types of lawsuits where, for example, the media might be sued to attempt to prevent them from exposing corporate wrongdoing or political inactivity.

Can bring an application to have lawsuit dismissed

“Anti-SLAPP law effectively allows the defendant of a lawsuit to bring an application to have it dismissed at an early stage if they can prove that it is a strategic lawsuit against public participation.”

She pointed to the recent Ontario Superior Court of Justice decision in Rainbow Alliance Dryden et al. v. Webster to illustrate how the legislation can be applied.

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The plaintiffs, Caitlin Hartlen, a drag performer, and Rainbow Alliance Dryden, a not-for-profit corporation based in the City of Dryden that provides pride and 2SLGBTQI inclusion programming and events, filed a defamation lawsuit against Brian Webster for a Facebook posting they argued “publicly and falsely accused them of predatory behaviour.”

Webster defended his posting calling it fair comment, adding the lawsuit “is a gag proceeding meant to stifle his expression on matters of public interest,” the court was told. He maintained the action against him should be dismissed as “strategic litigation against public participation.”

Freedom of expression is not unfettered

In allowing the lawsuit to proceed, Justice T. J. Nieckarz states that while freedom of expression “has been recognized as an extraordinarily important freedom” it is not unfettered.

“Along with rights come responsibilities, especially when one is recognized by a number of individuals or ‘followers’ as a local media source,” she writes. “Not exposing another individual to hatred, contempt or ridicule by making allegations that have no basis in fact … is such a responsibility.

“I simply cannot find any public interest in protecting a harmful trope that associates 2SLGBTQI people with sexual predation against children. On the other hand, there is considerable public interest in allowing individuals who are the victims of such conduct to publicly defend their reputation in a court of law.”

Low says the case serves as a reminder of the dangers of posting potentially damaging information on social media platforms.

‘Comments are hard to take back once they are online’

“People sometimes forget that the comments that they make online may be open to defamation in the same way that a traditional media publication can be,” she says. “You can post a retraction that may help reduce damages but it won’t necessarily take a lawsuit away. Comments are hard to take back once they are online.”

Low adds that it is not only online defamatory statements that can get people in trouble. She cites a recent case where the Ontario Human Rights Tribunal awarded a woman a settlement for discrimination.

However, the woman posted details of the settlement on LinkedIn and was ordered to repay the money for breaching confidentiality and non-disparagement clauses, she says.

“The bottom line is you must be careful of what you say online and think twice about the information you share with the media,” Low says. “The law can be complex. If you have doubts or concerns you should speak to a lawyer.”