Protecting Your Brand Reputation in the Internet Age

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

February 27, 2013

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

Your Brand 2


Consumer Activism 3


Defamation 4

¬ 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


Test for Defamation 5

¬ 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


Test for Defamation 6

¬ 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.)


Defences to Defamation 7

¬ Defences
¬ Truth
¬ Absolute Privilege
¬ Qualified Privilege
¬ Fair Comment
¬ Innocent Dissemination
¬ Responsible Communication
¬ Other Considerations
¬ Did the defendants act with malice?
¬ Did the defendants apologize?


Responsible Communication 8

¬ 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

Fair Comment: How Fair is “Fair”? 9

¬ 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



¬ 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



¬ 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


Innocent Dissemination: 14

How Innocent is Innocent?
¬ Hyperlinking
Crookes v. Newton, 2011 SCC 47

¬ Web Hosting
Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398
Hemming v. Newton, 2006 BCSC 1748


Attacking the Attacker 15

¬ 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


Attacking the Attacker 16


Protecting Your Brand 17

¬ 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

Protecting Your Brand 18

¬ 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


POSTS from YELP 19


POSTS from YELP
20
20


Questions? Comments? 21


Your Team 22

Miranda Lam Elder C. Marques
Partner Partner
(604) 643-7185 (416) 601-7822
mlam@mccarthy.ca emarques@mccarthy.ca


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Protecting Your Brand Reputation in the Internet Age

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Protecting Your Brand Reputation in the Internet Age