by Michael V. Coyle, JD*
In a written decision released on August 7, 2012, the Supreme Court of Nova Scotia awarded damages of $425,000, plus an injunction, plus costs against a US-based blogger for the defamation of two Nova Scotia business owners and their company.
The judgement includes rare awards of both aggravated and punitive damages and an injunction prohibiting the blogger from publishing or posting any comments or images on the internet about the businessmen or their company and a “mandatory injunction” requiring him to remove the defamatory comments or images from any web sites on which he had posted them and to remove any links to those sites.
It all began when a mainstream US newspaper in Louisiana published a story about an allegedly corrupt local politician. The allegations were that the politician was involved in kickbacks, money laundering and fraud while in office. The story erroneously identified the two NS businessmen as being involved with the corrupt politician and the article falsely stated that their Nova Scotia company was owned by that politician.
When the newspaper found out that those allegations against the Nova Scotia businessmen and their company were untrue, it printed a full retraction and it apologized to them.
The blogger, however, continued, despite the retraction, to repeat those false allegations and he took it much further. He said in his blogs that the businessmen had misled a Canadian government funding agency and had committed perjury in litigation here. He said that the business was verging on bankruptcy and would soon close because of the investigation of the corrupt Louisiana politician and his inability to continue to support it.
The blogger claimed that the Nova Scotia businessmen were involved in a series of failed businesses and that they are con men and liars. He claimed that they had pulled strings to get the story retracted in the US. His allegations were laced with anti-gay rhetoric and homophobic comments and images.
He did not defend, or even formally acknowledge, the defamation suit against him in Nova Scotia, instead he continued to publish false and hateful allegations against the two business owners even as the case was before the Court. He said in his blogs, right up to the day of the hearing, that the two were improperly using the legal system by suing him for defamation.
Because the blogger failed to file a Defence to the lawsuit, the businessmen were awarded “default judgement” against him, without a trial. That meant that the statements made by the businessmen in their claim were deemed to be proven. They then asked the Court to hold a hearing to determine the damages.
Notice of that hearing was sent to the blogger but he ignored it. The judge was clearly not amused.
After hearing evidence from the two businessmen about the impact these defamatory statements had on them, personally and on their business, the judge ordered the blogger to pay damages for defamation of $50,000 to the company, plus another $100,000 to each of the businessmen. On top of that, she ordered him to pay each of the businessmen another $50,000 for “aggravated damages” plus another $25,000 to each of them as “punitive damages”.
Because the businessmen were not represented by a lawyer (although one of them had legal training but was not a practising lawyer) she fixed costs at only $2,000, plus expenses.
In awarding damages, the judge made special mention of the fact that the defamation in this case was carried out entirely on the internet, which she clearly held to be an aggravating factor. She quoted with approval an Ontario Court of Appeal judge who said in an earlier case:
“Is there something about defamation on the Internet – ‘cyber libel’, as it is sometimes called – that distinguishes it, for purposes of damages, from defamation in another medium? My response to that question is ‘Yes’.”
That judge went on to say:
“Communications via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed…”
In rebuke to those who may think that you can get away with anything on the internet, the Ontario appeal court judge continued, with the obvious approval of the Nova Scotia judge:
“Any suggestion that there can be no effective remedy for the tort of defamation (or other civil wrongs) committed by the use of the Internet (or such wrongs must simply be tolerated [as] the price to be paid for the advantages of the medium) is self-evidently unacceptable.”
This case makes it clear that ‘cyber libel’ will not be tolerated in Nova Scotia and that those who commit it against Nova Scotians will pay dearly for it.
While the damages awarded in this case – particularly the aggravated and punitive damages – may seem small by US standards (the plaintiffs were asking for total damages in the $1 million range), by Canadian and Nova Scotia standards they are huge. The fact that both aggravated and punitive damages were awarded at all by a Nova Scotia court is remarkable in itself.
The judge in this case paid careful attention when assessing damages to the intensity and repetition of the defamation, the homophobic slurs and images that accompanied it and the deliberate, calculated attack on the character and reputations of the individual Plaintiffs and the clear intent to cause harm to their business. That the Defendant was thumbing his nose at the Court by refusing to acknowledge the Court’s jurisdiction while continuing to issue his defamatory statements, even as the Court was hearing the case, certainly did not help his cause.
The fact that there was no Defence filed and that notice of the damages hearing was given to the Defendant and he still did not appear means that an appeal would be, from a practical perspective, virtually impossible.
For information about how this case might apply in your situation, please contact me.
*Michael Coyle is an experienced lawyer, mediator and arbitrator based in Kentville, Nova Scotia. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at firstname.lastname@example.org For more information and tips, visit his website at www.michaelcoyle.ca
©Michael V. Coyle, 2012