Within every parent there is an inherent notion that they know what is best for their child. However, occasionally a parent’s idea of what is best for their child is not harmonious with the law. An example of this can be found in the case Ottawa Carleton District School Board v. Scharf et al.,  OJ 3030 (ONSupCtJus). This case tackles issues pertaining to defamatory claims placed in a “News Release” that was posted and distributed online.
The defendants in this case are, a mother of a child with Down’s Syndrome who attends the plaintiffs school [the “Mother”], and a children’s rights activist [the “Activist”]. The conflict stemmed from the Ottawa Carleton District School Board’s decision to place the Mother’s child in an English immersion program instead of a French program (which was preferred by the Mother). As a result of this conflict the Mother and the Activist teamed up and published a “News Release,” demanding, amongst other things, that the Mother’s child be placed in the French immersion program.
The “News Release” was posted online and also emailed to various Trustees, Board Administrators, Principals, Vice-Principals, and Members of Parliament. The board took legal action for defamation on behalf of the Principal, Superintendent of Instruction, and themselves.
On first instance the trial judge found that all four statements constituted defamation. In addition, G.R. Morin J found that both the Mother and Activist were equally liable for the defamatory “News Release.” After a quick analysis of the defences to defamation the judge concluded that no defence was available to the accused. The judge pointed out specifically that the defamation contained in the “News Release” was exacerbated by its distribution on the internet and because of this, the potential harm of the publication was increased.
The court awarded damages to the Principal and Superintendant on the grounds that they are both teach professionals who each rely heavily on their reputation. In addition to awarding $15,000 in general damages to each of the plaintiffs, special damages were awarded to one of the plaintiffs who required psychological assistance as a result of the damage caused by the “News Release.”
The Mother appealed the decision to the Ontario Court of Appeal and acted on her own behalf. The Mother argued that she had not directly participated in publishing the “News Release” and its online release was entirely orchestrated by the Activist. The court found that this was not the case, and they concluded that the Mother was aware of the “News Release” prior to its distribution online. Therefore, the Mother contributed to the defamation and was liable for the damage it caused. Thus, the appeal was dismissed and the trial judge’s decision remained. [Link to Case]
On December 4, 2008 a final appeal was made by the Mother to the Supreme Court of Canada. In her appeal the Mother claimed that her freedom of expression rights were violated [Section 2, Charter of Rights and Freedoms]. This appeal was dismissed without reason.
This case outlines the possible consequences of publishing defamatory content online. Section 2 of the Charter of Rights and Freedoms sets out the guidelines of Canada’s freedom of expression and speech laws, however there are limits to the type of content that can be freely expressed. One of those limits is defamatory content, and this case sheds light on the potentially devastating effects that a can result when reputable professionals are targeted.
In addition, the appeal case exposes the implications of contributing to defamatory acts and how that relates to responsibility for the outcome. This is especially important when the defamatory content is distributed via the internet. The court identified specifically, the extent and increase in harm caused when defamatory content is available online. Although it occasionally becomes difficult to identify parties online, due to anonymity when posting material, it remains important to be mindful of what is being published online, and what the defences are for defamation.
Justification: One absolute defence to defamation is justification or truth. If the statement being made is true, despite being damaging to ones reputation, it is not considered defamation. The onus to prove this is placed on the defendant. Therefore, the defendant must prove that the statement he/she made is substantially true, rather than the plaintiff prove the statement false.
Fair Comment: Comments that are honestly held and fair expressions of opinion on matters of public interest, based on facts, are not considered defamation.
Qualified Privilege: If a defendant has a legal, moral, or social duty to make a statement, and the statement has some sort of public interest element, then that statement is not considered defamatory.
Responsible Communication Defence: A relatively new progression in defamation defences is the addition of a responsible communication privilege (also known as the responsible journalism defence). This defence dictates that journalists whose reports are a matter of public interest, and are prepared and published responsibly (diligently researched and verified), may be protected from a defamation action via this defence.
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