Online Defamation: Can I Bring an Action in Ontario?
By Charles Thompson, QTMG Injury Lawyers, Ottawa, on June 1, 2015
If your reputation in Ontario is being attacked by defamatory online publications, then you have the right to bring an action for compensatory damages in an Ontario court.
What is Online Defamation?
The tort of defamation allows the plaintiff to recover monetary compensation when their reputation is damaged by false statements of fact made by the defendant. The plaintiff in an action for defamation must prove:
1. A statement was made that would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. The statement in fact referred to the plaintiff; and,
3. The statement was published meaning that it was communicated to at least one person.
Grant v Torstar Corp,  3 SCR 640, para 28.
In the internet era, it is easier than ever to publish a defamatory statement. A defamatory comment on social media or a blog post can be published to a vast, and often international, audience in an instant. Because of the global nature of the internet, it is possible for the tort of defamation to span multiple jurisdictions. In such cases, the question becomes: in what jurisdiction should I bring a claim for defamation?
Can I Bring an Action in Ontario for Online Defamation?
If you have a reputation in Ontario that has been damaged by defamatory statements, then the answer to this question is most likely “Yes.” The court will consider two questions in deciding whether Ontario is the appropriate jurisdiction to hear your claim:
1. “Real and substantial connection:” is there a real and substantial connection between the alleged defamation and the jurisdiction of Ontario. If a person in Ontario received the defamatory communication, this is a presumptive connecting factor that entitles an Ontario court to assume jurisdiction over the matter: Breeden v Black  1 SCR 666, para 20.
2. Forum Non Conveniens: the court may decline to exercise its jurisdiction if some other jurisdiction is better suited to hearing the dispute. However, if your reputation has been damaged in Ontario, then Ontario is most likely the correct forum.
Case in Point: Breeden v Black, 2012 SCC 19
The recent Supreme Court of Canada case of Breeden v Black is remarkable for the forum non conveniens analysis used by the court. The plaintiff, Conrad Black, brought a defamation claim against several directors, officers, and a vice president of Hollinger International Inc. alleging that they made several defamatory statements on the company website. The comments were then picked up and republished by Canadian media outlets such as The Globe and Mail, the Toronto Star, and the National Post. The newspapers were not named as defendants in the action.
The defendants at Hollinger International Inc. argued that Ontario was forum non conveniens. Hollinger International Inc. is incorporated in Delaware, United States, and the majority of defendants were United States residents. The legal test to be met for defamation (or libel, as it is called in Illinois and Delaware) is different than the test for defamation in Ontario. For this reason, the Ontario judgment was unenforceable in the United States.
Despite all of these inconvenient factors, the court gave a great deal of weight to the fact that Lord Black’s reputation in Ontario had been badly damaged by the defendants’ defamatory publications. It considered this factor to outweigh all other inconveniences and declared Ontario to be the appropriate jurisdiction.
This article is presented for information purposes only and should not be read as legal advice. Each case is different and the law may apply differently depending on specific facts of each case.
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