Protecting Your Brand Reputation in the Internet Age

Protecting Your Brand Reputation in the Internet AgeMiranda Lam and Elder C. Marques

February 27, 2013

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca

http://www.mccarthy.ca/

Your Brand 2



Consumer Activism 3



Defamation

¬ What is defamatory?¬ A defamatory statement is one which has a tendency to injure the

reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one ...

Color Your World v. Canadian Broadcasting Corporation (1998), 38 O.R. (3d) 97 (C.A.)

¬ Who can be defamed? ¬ Individuals, including corporations¬ “Groups” where personal injuries have been sustained

Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 SCC 9

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http://canlii.org/eliisa/highlight.do?text=Canadian+Broadcasting+Corporation&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onca/doc/1998/1998canlii1983/1998canlii1983.html&searchUrlHash=AAAAAQAhQ2FuYWRpYW4gQnJvYWRjYXN0aW5nIENvcnBvcmF0aW9uAAAAAAAAAQ

http://canlii.org/en/ca/scc/doc/2011/2011scc9/2011scc9.html


Test for Defamation

¬ When is it actionable?

¬ The impugned words were defamatory¬ The words referred to the Plaintiffs, and¬ The words were published

Grant v. Torstar Corp., 2009 SCC 61 (“Torstar”) at para. 28

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Test for Defamation

¬ What damages are available?¬ Damages are presumed, but plaintiff can also

prove special damages¬ Corporations were traditionally limited to

special damages, but these restrictions have been loosened and they can even be entitled to punitive damages

Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.)

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http://canlii.org/en/on/onca/doc/2004/2004canlii12938/2004canlii12938.html

http://canlii.org/en/on/onca/doc/2004/2004canlii12938/2004canlii12938.html


Defences to Defamation

¬ Defences¬ Truth¬ Absolute Privilege¬ Qualified Privilege¬ Fair Comment¬ Innocent Dissemination¬ Responsible Communication

¬ Other Considerations ¬ Did the defendants act with malice? ¬ Did the defendants apologize?

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Responsible Communication

¬ New defence confirmed in Torstar (SCC 2009)¬ Must be on a matter of “public interest”¬ Applies not only to traditional media¬ Defendant must have been responsible/diligent

and tried to verify the allegations¬ Relevant factors include:

¬ Seriousness of allegation¬ whether there was “urgency” in publication¬ whether the source was reliable

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Fair Comment: How Fair is “Fair”?

¬ Test:¬ The comment must be on a matter of public interest ¬ The comment must be based on fact¬ The comment, though it can include inferences of fact, must

be recognizable as comment; ¬ The comment must satisfy the following objective test: could

any person honestly express that opinion on the proved facts?, and

¬ Even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice

WIC Radio Ltd. v. Simpson, 2008 SCC 40

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¬ Test: (cont’d)

¬ “[W]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.”

WIC, para. 4

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Fair Comment: How Fair is “Fair”? 11



Fair Comment: How Fair is “Fair”? 12




¬ Freedom of expression¬ “The language in his publications – including the mock cigarette

packages in particular – is extreme, inflammatory, sensationalized, extravagant and violent.

¬ [however]…the protection of a person’s ability to exercise his or her right to freedom of expression in order to attempt to influence public opinion on legitimate public issues is the objective of the defence of fair comment. The defence cannot be defeated if Mr. Staniford was doing the very thing that the defence was designed to protect.

Mainstream Canada v. Staniford, 2012 BCSC 1433 at paras. 198 and 201

¬ Engaging in the conversation: a different standard?Baglow v. Smith, 2012 ONCA 407

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http://canlii.org/en/bc/bcsc/doc/2012/2012bcsc1433/2012bcsc1433.html

http://canlii.org/en/on/onca/doc/2012/2012onca407/2012onca407.html


Innocent Dissemination: How Innocent is Innocent?¬ Hyperlinking

Crookes v. Newton, 2011 SCC 47

¬ Web HostingCarter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398

Hemming v. Newton, 2006 BCSC 1748

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http://canlii.org/en/bc/bcca/doc/2005/2005bcca398/2005bcca398.html

http://canlii.org/en/bc/bcsc/doc/2006/2006bcsc1748/2006bcsc1748.html


Attacking the Attacker

¬ There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then hides behind the electronic curtain provided by the Internet.

R.F. Goldstein J. in Manson v. John Doe. No. 1, 2013 ONSC 628 at para. 20

¬ Uncovering the attacker¬ Commencing suit against the attacker¬ Injunctive relief

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Attacking the Attacker 16


Protecting Your Brand

¬ The best defence is offence: tell your story, especially given the defence of “responsible communication”

¬ Defamation law is a blunt tool: will bringing an action or threatening one make things worse?

¬ Monitor social media networks and use as “early warning system”

¬ Implement a social media policy, train your staff/franchisees/retailers on it, and monitor for compliance. Watch for waivers of privilege

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Protecting Your Brand

¬ Maintain & update your “User Agreement” and “Terms of Use” sections on your website regularly

¬ Train staff on how to respond to complaints appropriately

¬ Ensure you have the appropriate insurance coverage

¬ Remember that the Internet is forever

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POSTS from YELP 19


20POSTS from YELP 20


Questions? Comments? 21


Your Team 22

Miranda LamPartner(604) [email protected]

Elder C. MarquesPartner(416) 601-7822 [email protected]


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Protecting Your Brand Reputation in the Internet Age

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Transcript of Protecting Your Brand Reputation in the Internet Age