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Defamation law applies to online slanders, too

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Former Toronto Maple Leafs general manager Brian Burke's defamation lawsuit against 18 online commentators who falsely claimed he had an extra-marital affair with, and even fathered a child by, Rogers Sportsnet reporter Hazel Mae, is a gutsy move.

Whether it's the right move is open to debate.

Burke, who was fired as the Leafs' president and GM in January, is married to CTV News Channel anchor Jennifer Burke. The comments, widely circulated on social media, claimed Burke's ouster with the Leafs had less to do with the team's on-ice performance than an alleged steamy affair with Mae.

For her part, Mae supports Burke's defamation claim. She has said through her lawyer that she's still weighing her legal options.

The problem with the defamation action is it's introduced the lies to whole swaths of the public who'd never heard of them, and might never have, but for the lawsuit.

The comments, patently false, were bravely made under pseudonyms such as "Slobberface," "Mowerman," "Kaboomin8," and "Poonerman." They're prime examples of a relatively new subspecies of defamation that's earned the tag cyber-libel.

Cyber-libel, because it's frequently done anonymously, can be particularly ugly. The digital world's nastiest cowards will, with virtual impunity, fabricate anything about anyone and send it spinning off into cyberspace.

Judges have always considered the number of people likely to have seen, read or heard a defamation a critical factor when assessing a damages award. But the potential reach or "exposure" of a defamation has mushroomed with the advent and growth of cyberspace and social media.

But damages awards have started to catch up with digital technology. In the last few years, Canadian courts have consistently ruled spreading a libel over the Internet increases the dollar value of the damages payable by the libeller.

Almost as encouraging is the courts' approach to costs. In most lawsuits, "costs follow the cause," meaning the winning litigant, be it plaintiff or defendant, gets his or her legal costs paid by the loser, on top of any damages award. But how those costs are calibrated varies. The trend with cyber-libel is to make the offender pay every penny of the hefty legal costs incurred by the person he's spread lies about.

Still, not every potential libel warrants litigation. Engaging the machinery of the civil justice system shouldn't be done lightly. And once done, it sometimes extends the reach and notoriety of the original libel.

Launching a libel action often further publicizes the libel. The media are entitled to repeat the alleged libel in a news story once a lawsuit's filed with the court. Moreover, repeated reporting or broadcasting of the libel alleged in legal pleadings often has the unintended effect of giving an aura of credibility to the falsehood. Repetition sometimes breeds legitimacy, at least in the public mind.

On the other hand, if the original offending message starts getting lots of replies, comments or questions, or other bloggers and websites re-publish the allegations, that's a sign the defamation's already got legs, and it's time to consider legal action.

This apparently happened in Burke's case. Several bloggers referenced "rumours" and "speculation" about an alleged affair between Burke and Mae that previously had surfaced in online forums. Their giving the allegations currency was the tipping point that caused Burke to say enough is enough and launch a legal action.

Some of the 18 defendants in Burke's suit, responding anonymously of course, maintain Canada's defamation laws don't apply to online forums, blogs, Facebook, Twitter or any other Internet platform.

They're dead wrong. The fundamentals of defamation law haven't changed with the advent of the Internet. Their right to free speech doesn't extend to disseminating lies that damage reputation, regardless of the medium.

Perhaps Burke's lawsuit will teach the Internet trolls a hard lesson: That the law applies online just like it does offline.

If so, Brian Burke will have done us all a great service.


Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition June 4, 2013 A9

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