“Please leave us a good review”.
Many people will be familiar with this refrain, which has become as common for customers as “have a nice day” and “thank you for choosing X Company”.
It is understandable: online reviews have become a powerful tool for rating a company. It is often the first thing that a potential customer sees when they search for a business.
So, what happens when someone leaves a bad review and that bad review is not just constructive criticism, but it is personal, toxic, and defamatory?
You could sue them for defamation, but that is a difficult and expensive option.
However, a recent Ontario Court of Appeal decision in Dent-X Canada v. Houde (2022 ONCA 414) may create an opening for corporations who wish to sue individuals who defame them online.
Ontario’s Anti-SLAPP Laws
The primary roadblock to defamation lawsuits in Ontario is the province’s anti-SLAPP legislation.
SLAPP stands for Strategic Lawsuit Against Public Participation: defamation lawsuits strategically brought to shut down criticism – think of a wealthy individual who may want to silence his critics, or a large corporation that may want to stop a whistleblower. The actual lawsuit may not have much chance of success, but it is the years of expensive litigation that is the intended punishment.
To combat SLAPP suits, Ontario introduced an anti-SLAPP law in 2015. The law allows SLAPP suits to be quickly dismissed, with heavy costs for the plaintiff.
To explain how it works with a completely hypothetical example, let’s say Johnny sues Amber for defamation in Ontario. Amber’s lawyers believe the lawsuit is a SLAPP and bring an anti-SLAPP motion.
Amber will first have to show a judge that whatever she said about Johnny is a matter of public interest. Public interest is a broad term and has been interpreted by our courts to mean anything that some segment of the public may have an interest in. Importantly, it does not include gossip about famous people.
If Amber says that her speech was about something that a segment of the public ought to know and care about, she has met her burden and the judge must dismiss Johnny’s case.
To stop that from happening, Johnny will have to show three things: first, he will have to show that his case against Amber has substantial merit, which in a defamation lawsuit fundamentally means showing that Amber’s speech lowered Johnny’s reputation in the eyes of the public.
That is a high bar, because having a merely arguable case is not enough; Johnny must have a pretty good case with substantial merit.
Second, Johnny must show that Amber has no available defences. When someone is sued for defamation, they could have many defences like: whatever they said was true, that it was an opinion, or that it was spoken in an environment that is protected from lawsuits (such as complaints to the police).
Again, this is a high bar because Johnny must show that Amber does not have a single defence for her speech. If there is even one viable defence, Johnny’s case is dismissed.
Finally, Johnny must show that whatever harm he suffered from Amber’s speech outweighs the benefit of allowing Amber’s speech to stand.
In Canada, freedom of expression is a constitutional right. Our courts have generally taken the view that free speech should only be restricted for very good reasons. As such, Johnny’s damages must be compelling for it to trump Amber’s right to expression.
After doing all that, if Johnny is successful, he gets to continue his lawsuit. If he loses, however, the general presumption is that he must pay Amber’s legal fees in full. This is highly unusual in Ontario, where the losing side is rarely ordered to pay the winning side’s full legal costs.
The Court of Appeal clarifies what is in the public interest
The anti-SLAPP process hinges on speech that is in the “public interest”, and recent developments in the law carves out space for corporations that may have been defamed online.
In Dent-X, the Ontario Court of Appeal stressed a distinction between speech that is relating to the public interest, versus speech that is simply referring to the public interest. The former is protected, the latter is not.
In this case, the plaintiff Dent-X, a mask manufacturing company, sued a former customer who posted negative comments about the company on Facebook.
The title of the post suggested that the unhappy customer was looking for other people to start a class action lawsuit against Dent-X. The balance of the post, however, was made up of a series of personal allegations of fraud and references to the ethics of the company’s executives.
Dent-X sued the customer for defamation, and the customer brought an anti-SLAPP motion to have the lawsuit dismissed.
The main issue at the hearing was whether the Facebook post was in the public interest.
The customer said it was, because he hoped that other people would hear about his bad experience and join him in a class action lawsuit against the company.
Dent X argued that the Facebook post was about a private dispute and the customer’s comments had nothing to do with the public interest.
The Ontario Court of Appeal confirmed the lower court judge’s ruling that the Facebook post on the whole did not relate to a matter of public interest and allowed the defamation lawsuit to continue.
The Court recognized a general public interest in masks and class actions, but this particular Facebook post only had a passing reference to those issues. The balance of the post was about the customer’s private grievances.
This clarification confirms that a defendant’s speech, taken as a whole, must be about something relating to the public interest to be protected by anti-SLAPP legislation. It is not enough for the speech to be about a private dispute, with passing references to the public interest.
While the question of what is in the public interest will depend on the facts of each case, this recent decision shows that if an unhappy customer writes a scathing defamatory post online about their private dispute, even if it contains a passing reference to the public interest, they may not be able to hide behind Ontario’s anti-SLAPP law.
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