In our blog Toronto Defamation Lawyers – Libel and Slander Law in Ontario, we suggest that in order to be successful on a defamation claim, one would have to prove that the allegedly defamatory publication was “published”, among other things.
The court of appeal has provided some clarity on what it means to “publish” defamatory content.
In Zoutman v. Graham, 2020 ONCA 767 (CanLII), the court contends on an appeal from a summary judgment motion, that a defamation claim requires proof that the “words were communicated to at least one person other than the plaintiff”.
On the original summary judgment motion, the motions judge acknowledged that there was no evidence that the allegedly defamatory postings were viewed by anyone other than the parties and their lawyers. However, the motions judge drew an “inference of publication” from the totality of the circumstances.
In drawing the inference of publication, the motions judge considered the following circumstances/matters:
- A comment by a third party referring to one of the alleged defamatory postings;
- The website on which the alleged defamatory posting was allegedly published was frequently used by the public;
- The alleged defamer’s evidence that he authored postings to warn prospective patients of the plaintiff;
- The alleged defamer’s acknowledgement that he posted one of the allegedly defamatory postings due to his concern that his message would not get across to the public; and
- The prominence of the plaintiff’s profile on Google searches.
The appellate court did not disturb the motion judge’s conclusion of publication based on the above circumstances/matters. The case stands for the proposition that one can establish the element of “publication” without direct proof that the allegedly defamatory words were communicated to at least one person other than the plaintiff. Rather, based on the totality of the circumstances, an inference of publication can be drawn.
For more, see our online defamation webpage.
At Gilbertson Davis LLP, our lawyers can assist in matters involving the removal of defamatory material from the internet. Our lawyers can represent you, your business, company, partnership or corporation in your defamation dispute, whether you are the person being defamed or the alleged defamer. Such representation may include claims or the defence of claims for particular losses or damages additional to damages for defamation itself. Gilbertson Davis LLP lawyers have experience in Defamation, Civil Litigation, Business Torts, Business Litigation, Arbitration and Mediation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients on defamation disputes. Please contact Gilbertson Davis LLP to schedule a consultation.
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