Social media platforms have become a well-worn tool in the utility belt of journalists, allowing them to engage more intimately with their readers. Some journalists have even leveraged social media to gain a moderate amount of online influence. The Toronto Star’s Daniel Dale, for instance, gained notoriety for exposing the falsities of U.S. President Donald Trump over Twitter. He now has 513,000 followers. But as journalists develop their personalities over social media and express themselves more freely, they also leave themselves vulnerable to criticism and claims of defamation.
Dale himself was involved in a slander suit in 2013, when he threatened to sue then Toronto mayor Rob Ford for calling him a pedophile. Ford apologized and the case was eventually dismissed, but that wasn’t the end of Dale’s entanglements with power. In 2017, President Trump blocked Dale on Twitter, unhappy with Dale fact checking his statements.
The most notable online defamation trial in Canada, Crookes v. Newton, occurred in B.C. in October 2011, when Wayne Crookes sued Jon Newton for hyperlinking to defamatory material about Crookes on his website. The suit was eventually dismissed due to the fact that hyperlinks were deemed different than acts of publication, a necessity built into the definition of libel.
“One of the main reasons is that what’s behind a hyperlink can change over time. It would be unfair to make someone liable for something when it might not even be what they thought,” says Ryder Gilliland, a Toronto media lawyer.
There was a minority decision in the case, however, that still left some doubt. “If you’re adopting the content of what’s behind the link, you could be liable for it,” Gilliland says. So, while posting something libelous to Facebook and Twitter is pretty cut and dry, journalists could also be at risk of a libel suit if they retweeted or shared something libelous. “With the hyperlink, the content behind it might change, but with the retweet, that content won’t change,” Gilliland says.
The law is trying to adapt to the transforming digital landscape, but it’s a slow build. “There isn’t really a whole lot of law that’s context specific in terms of this is what’s defamatory on a Facebook post versus this is what’s defamatory in a newspaper article versus this is what’s defamatory in a tweet,” Gilliland says. “The law doesn’t look at things that way. The law just looks at what’s defamatory.”
In order to protect themselves online, Gilliland suggests journalists follow the same guidelines they would with print. “The best practices are really not all that different from the best practices for journalists generally, which is to fact-check, to not publish defamatory falsities, and if you’re publishing opinion, to have that opinion based on true facts.”
Still, publications remain wary of the uncharted terrain offered by online defamation and have started to rethink their rules around social media in order to protect themselves against lawsuits. “Everything we say on social media reflects back on who we are as people, but also on our colleagues,” says Paul Hambleton, the director of journalistic standards and practices at CBC. In order to make their journalistic decisions clear to the public and their employees, CBC posted a publicly available guideline to their journalistic practices and standards. The guideline stresses the need for journalists to maintain a professional demeanour on social media—no matter how tempting it is to rant about certain politicians. “We’re always mindful of the professional association we have at the CBC,” Hambleton says. “So, you’re a journalist when you’re reporting for The National. You’re a journalist when you’re reporting for World Report. You’re a journalist when you’re on Twitter.”
As of now, there are few set laws in Canada surrounding defamation on social media. They won’t be developed until the first case of social media defamation is brought to trial. But to avoid being that first case, it’s best to heed Hambleton’s advice: “Don’t say anything on social media that you wouldn’t say on the air.”