Combatting Cyber-libel: Protecting Your Reputation from Online Attacks

Disclaimer: The material provided in this article is for general information only. It is not intended to provide legal advice or opinions of any kind. If you suspect that you are experiencing cyber-libel or other forms of defamation, please contact McCarthy Tétrault LLP or another law firm with experience in the area for assistance.

What is cyber-libel? Cyber-libel is defamation on the internet. It can be a professional’s worst nightmare.

While it can happen on any platform, including in blogs and social networking sites, rating websites such as RateMDs.com offer a platform that can be easily misused in this manner. These websites are online resources that are intended to enable users to inform themselves about professionals (including, potentially, dentists) through the firsthand experiences of patients. While the platforms may be useful to prospective patients, the potential for misuse is concerning. For example, non-patients may use these websites to spread false and damaging statements about the professional. Such was the case in Zoutman v. Graham.²

Mr. Graham was a plaintiff in a 2013 medical negligence case. Dr. Zoutman was an infectious diseases specialist and expert in the medical negligence case who testified that Mr. Graham’s brother could not have been saved even with earlier diagnosis.³ The following day, despite never having been Dr. Zoutman’s patient, Mr. Graham posted poor ratings on Dr. Zoutman’s RateMDs’ profile and left false, defamatory comments that Dr. Zoutman was, among other things, “dangerous and delusional” and a “threat to patient safety.”⁴

After enduring a year and a half-long cyber-libel campaign, Dr. Zoutman sued Mr. Graham for defamation in the Ontario Superior Court.⁵ Ultimately, the Court found in Dr. Zoutman’s favour and ordered Mr. Graham to pay a total of $50,000 in damages, in addition ordering a permanent injunction preventing Mr. Graham from making further posts.⁶ The Ontario Court of Appeal affirmed this decision.⁷

This article reviews the legal test for defamation, potential defenses that the poster of the defamatory content may have, remedies that the Ontario court can offer for harm to your reputation, and practical considerations for professionals who may be under attack.

The Elements of Defamation

To establish defamation, a plaintiff must prove that:

The content at issue refers to the plaintiff;
The content at issue was published to a third party; and
The content at issue would make an ordinary person think less of the plaintiff.

The first element of the test is self-explanatory and, in the case of a rating website, easily satisfied: if the online review is about a professional and posted to their ‘profile’, it is satisfied.

The second element, publication, requires proof that an individual, other than the plaintiff or their lawyers, has read the content at issue. In some cases, the fact that the content was published can “reasonably be inferred from the proven facts” even if there is no evidence of an identifiable third party having read the defamatory remark.⁸

In Z v. G, for example, the court found “ample evidence of publication”, including: a comment by an apparent third party on one of Mr. Graham’s posts, the fact that RateMDs.com is frequently used by the public (including patients and other health professionals), and the prominence of Dr. Zoutman’s RateMDs.com and OntarioDoctorDirectory.ca profiles in Google searches concerning him.⁹

The third element of the test for defamation is assessed on the plain language of the content at issue. It must negatively affect the personal or professional reputation of the plaintiff on its face. If it does, then the content is assumed to be false, unless proven otherwise by the defendant.

In Z v. G, for example, the Court had “no hesitation in concluding that the language used to describe Dr. Zoutman in the postings would lower the reputation of a doctor in the estimation of right thinking members in the community.”¹⁰

Ultimately, there is strong precedent that negative online comments by non-patients that attack the trustworthiness of a medical professional are defamatory.¹¹

Defenses to Defamation

A defendant who is accused of defamation has four main potential defences:

Truth – the plaintiff cannot succeed if the content at issue is true.
Fair Comment – the plaintiff cannot succeed if the content at issue is clearly presented as an opinion based on true facts, on a matter of public interest, and not motivated by malice.
Qualified Privilege – a plaintiff cannot succeed if the content at issue was an honest communication, made without malice, in a specific, protected scenario (i.e., an employment reference). Actual or express malice, in this context, includes:
a. spite or ill will;
b. any indirect motive or ulterior purpose which conflicts with the occasion; and
c. speaking dishonestly, or in knowing or reckless disregard for the truth.
Responsible Communication – a plaintiff cannot succeed if the statement was made by the media on a matter of public importance, where the media was diligent in investigating its veracity.

In the case of potential cyber-libel on a rating website, fair comment would be the most likely attempted defence.

As alluded to above, the defendant must prove four elements to succeed based on the defence of fair comment:

The opinion must be on a matter of public interest;
The opinion must be based on true facts;
The opinion must be recognizable as opinion (i.e. although the opinion can include inferences of fact, it should not be stated as though it is a fact); and
The comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?¹²

For the first element, there is usually a low threshold for defendants to demonstrate that their opinions are “on a matter of public interest”. While Z v. G recognized that posts warning prospective patients are “part of the underlining (sic) rationale” for the existence of professional rating websites, Justice Mew also acknowledged that courts must balance the right to comment on a public concern against the protection of an individual’s reputation.¹³

Ultimately, “even giving Mr. Graham a great deal of latitude because of the circumstances that impelled his criticisms of Dr. Zoutman,” the Court had “serious reservations as to whether the element of public interest [was] made out.”¹⁴

The second element of the test for fair comment is unlikely to be satisfied in cyber-libel cases based on content posted on rating websites if the poster of the content was never a client or patient of the professional, but their posting makes it appear that they were.¹⁵ An opinion about a professional cannot be based on “true facts” in that scenario. Therefore, as in Zoutman, a defence of fair comment will be easily defeated if a poster is “masquerading” as a patient.

Even if a defendant satisfies all of the above four elements of the defence of fair comment, a plaintiff can still defeat that defence by proving that the defendant’s comments were motivated by malice. Malice refers to an expression made solely for the purpose of annoyance and harassment, to harm, injure, or punish someone or satisfy some personal resentment or grudge.

In Z v. G, for example, since Mr. Graham refused to remove the posts that he acknowledged authorship of and persisted in posting further comments, all the time masquerading as a patient, the Court had “no hesitation in concluding that [Mr. Graham] acted out of malice.”¹⁶

To defeat a defamation lawsuit, the defendant may also bring a motion under s.137.1 of the Courts of Justice Act¹⁷ alleging that the claim is a Strategic Lawsuit against Public Participation (a “SLAPP”). This is called an anti-SLAPP motion. On this type of motion, if the defendant can show that their expression was on a matter of public interest, then the onus shifts to the plaintiff to prove that their proceeding has substantial merit and that the defendant has no valid defence.¹⁸ The plaintiff must also convince the court that the public interest in permitting their proceeding to continue outweighs any public interest in protecting that expression.¹⁹

Remedies – Damages and Injunctions

If a plaintiff proves their case, the Court will likely order the defendant to compensate the plaintiff monetarily. If a plaintiff has proven that the content at issue is defamatory, then some level of damages is presumed. This means that, to receive compensation, a plaintiff has no obligation to prove actual loss or injury to their reputation.²⁰
Compensation to “vindicate and repair” a plaintiff’s reputation and to “provide consolation for distress” is usually awarded through general damages. In egregious cases, however, a plaintiff may also be entitled to additional compensation in the form of aggravated and/or punitive damages.²²

In some cases, a plaintiff may also need an injunction – an Order of the Court to prevent an individual from publishing further defamatory posts.²³ In Z v. G, for example, the Court recognized that “it seems likely that there will be further reoccurrences if Mr. Graham’s conduct is not enjoined by an order of this court” and granted a permanent injunction.²⁴

Practical Considerations

If you suspect that you are experiencing cyber-libel, there are some practical steps you may want to consider before commencing a legal action. It is recommended that you contact a lawyer to assist you and ensure that you are taking appropriate steps.

Evidence – Immediately preserve evidence of the defamatory posts through screenshots and/or printing. Consider preserving not only the posts themselves, but also search results that displayed the posts, any comments that were made on the posts and who they were made by, the time and date that the posts were made, how long they were published for, any attempts to have the posts removed or flagged, and any harm to reputation as a result of the posts.

Mitigation – Once you discover defamatory posts about you on the internet, you have an obligation to make reasonable efforts to try to mitigate the harm from the posts. This may include contacting the platform to request that they remove the defamatory statements or deleting the posts, if they are made on your own website.

Be cautious about how you mitigate, especially if you are considering responding to the post. You do not want to inadvertently breach confidentiality obligations or defame the person back. In addition, you should be careful not to spread the damage to your reputation by circulating the posts to others.

Getting Behind Anonymous Reviews – If you know the individual that is defaming you online, retaining a lawyer to send a demand or “cease and desist” letter to the poster is usually the first step. This may convince the poster to delete their posts.

If you do not know who is leaving the defamatory reviews, you can seek a Norwich Order for the poster’s identity or IP address.

A Norwich Order is an order to compel a third party, like a website, to preserve and provide information to you before you commence a claim, such as the poster’s name(s) or e-mail address(es).²⁵

A Norwich Order may not be necessary if you are fairly certain that you know the identity of the poster. In Z v. G, for example, the Court had “no doubt whatsoever that Mr. Graham was the author of all of the impugned postings.”²⁶ Among other things, Justice Mew noted that the postings that Mr. Graham had not admitted to authoring revealed “a consistent style and recurring words and phrases suggestive of common authorship”.²⁷

Time Limits – Act quickly. For traditional forms of media (i.e., newspapers, television, radio, etc.), the time limit for serving a Notices of Libel is within 6 weeks of the defamatory statement being published.²⁸

This time limit does not currently catch all forms of online defamation so, in some circumstances, you will have two years after discovering the alleged defamatory statement to commence an action. That said, the longer you wait the less ‘important’ the court might see the defamatory remarks as being to you. Further, there may be law reform on the horizon that tightens these timelines.²⁹

Do not Suffer in Silence

Cyber-libel is an ever-growing concern in our increasingly digital world. If you think you are experiencing it, please contact a lawyer to explore your options.

References

Dorothy Charach is an Ontario lawyer at McCarthy Tétrault LLP and was counsel to Dr. Zoutman in Zoutman v. Graham, 2019 ONSC 2834, aff’d 2020 ONCA 767 [Z v. G]. Eyitayo Kunle-Oladosu is a 2023 summer student at McCarthy Tétrault LLP.
2019 ONSC 2834 [Z v. G].
Z v. G, 2019 ONSC 2834 at paras 3-4.
Z v. G, at paras 21, 29.
Z v. G, at para 4.
Z v. G, at para 126.
2020 ONCA 767.
Zoutman at para 76, citing Craven v. Chmura, 2013 ONSC 1552.
Zoutman at paras 81-82.
Zoutman at para 70.
Zoutman at para 71, citing Sagman v. Belleville Telephone Co of Canada, 2014 ONSC 4183, at paras 11-12 and Myers v. Canadian Broadcasting Corp, (2001), 2001 CanLII 4874 (ON CA).
Zoutman at para 86.
Zoutman at para 90-91.
Zoutman at para 94.
Zoutman at para 97.
Zoutman at para 101.
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1.
Zoutman at paras 38, 40.
Zoutman at paras 38, 40, 54-58, affirmed in Zoutman v. Graham, 2020 ONCA 767 at par 18.
Zoutman at para 113, citing Rutman v. Rabinowitz, 2018 ONCA 80 at para 62.
Zoutman at para 116.
Zoutman at para 119.
Zoutman at paras 127-131.
Zoutman at paras 129-131.
Dorothy Charach, “Practical Tips for Obtaining a Norwich Order,” McCarthy Tétrault (April 2016).
Zoutman, paras 25.
Zoutman, paras 62-64.
Libel and Slander Act, R.S.O. 1990, c. L.12, s.5(1).
Law Reform Commission of Ontario, “Defamation Law in the Internet Age,” Final Report (March 2020).

About the Authors

Dorothy Charach is a Partner at McCarthy Tétrault LLP in Toronto. She has a broad litigation practice, including defamation law, commercial litigation, class actions, professional liability, and product liability. She also teaches regularly at Osgoode Hall Law School and Queen’s Faculty of Law and guest lectures at the University of Toronto Faculty of Law. She may be reached via email at dcharach@mccarthy.ca.

Eyitayo Kunle-Oladosu1 is a Summer Student at McCarthy Tétrault LLP and a Juris Doctor candidate at Osgoode Hall Law School. At Osgoode, she is a Senior Editor for the Osgoode Hall Law Journal, a Dean’s Fellow, and a Student Representative for the Osgoode Legal History Society. She may be reached via email at ekunleoladosu@mccarthy.ca.