A recent Ontario case, Lavallee et al v. Isak, 2021 ONSC 6661, reminds us of the dangers of posting videos on social media platforms. In that case, Justine, Shania and Gilmour were play fighting. Shania took a short video of Justine and Gilmour wrestling and horsing around. Shania posted the video to Snapchat and shared it with a select group of friends on Snapchat.
One of Shania's followers took a screenshot of one scene of the video and shared it with her own followers. The screenshot depicted Justine face down on the ground with Gilmour on top of her. The defendant, Solit Isak, received a copy of this screenshot and shared it with her own followers, denouncing the actions of Justine, Shania and Gilmour as racist and that they were mocking George Floyd’s death. Solit invited her followers on Instagram and Twitter to join her in identifying and denouncing the behaviours depicted in the video. Prior to Solit’s post, the parties did not know each other.
The screenshot went viral. Ultimately, Shania and Justine lost their jobs. Shania posted an apology, but the backlash continued to have an affect on their work prospects. Justine and Shania sued Solit for defamation.
The case was decided by way of summary judgement. There was no dispute that the words referred to the plaintiffs or were published on social media platforms. Further, the judge ruled that a reasonable person reading Solit’s social media posts will tend to lower Justine and Shania’s reputation.
Solit attempted to use the defences of justification and fair comment. Solit was unable to prove that Justine and Shania were racist and thus the defence of justification failed. Solit never saw the entire video and she never made any attempt to verify the truth of the video. Furthermore, the judge concluded that even if the image resembled the death of George Floyd, the factual background did not include any indicia of racism that would suggest that the pose was deliberate or planned in any way. Solit’s allegations were not shared as an opinion, but rather a statement of fact, but the judge did not find that there was any malice.
The judge awarded general damages of $50,000 to each of the plaintiffs but declined to award aggravated or punitive damages, even though he found Solit’s actions to be reprehensible. The judge also ordered a permanent injunction requiring Solit to take down all social media posts regarding Justine and Shania and Solit was permanently prohibited from publishing any defamatory statements or encouraging other persons to publish defamatory statements about Justine and Shania. The unfortunate part is that Solit is unemployed and will unlikely be able to pay the damages awarded to the plaintiffs.
If you think someone posted a defamatory comment or video about you, contact the defamation and media lawyers in Toronto at Melekhovets Law to see if we can help you. We also have experience serving clients in need of a contracts lawyer in Toronto.