Canada: Internet Defamation, “Diaspora damages” or damage in a “tightly knit ethnic community” – David Potts

9 02 2019

Tightly knit ethnic communities and social media often combine to create a toxic brew of defamatory allegations. Special considerations apply to the assessment of damages in libel actions in Canada where the language in the publication was not English or French.

Decision in Magno v Balita

On 23 May 2018 the Ontario Superior Court   of Justice released a decision involving a claim for internet defamation Magno v. Balita, 2018 ONSC 3230. The claim concerned 35 articles which were alleged to be defamatory.  The plaintiff came to Canada in 1972 from the Philippines and was an active and well respected in the Filipino community. The plaintiff was granted summary judgment and was awarded general and aggravated damages of Can$300,000 and punitive damages of Can$110,000.

The issue of defamation damages in a “tightly knit ethnic community” was discussed in some detail in a previous similar decision against the same defendant Senator Tobias Enverga Jr. v Balita Newspaper et al., 2016 ONSC 4512.

Justice Lederman noted that most useful precedent was Botiuk v. Toronto Free Press Publications [1995] 3 S.C.R. 3 which involved an allegation that the plaintiff, a lawyer of Ukrainian descent, had misappropriated money that belonged to the Ukrainian-Canadian community. Publishing the documents had a devastating and lasting effect on both his private life and his professional career and continued to cause him stress, anxiety, hurt and humiliation.  The Supreme Court note that,

for a lawyer whose practice stems in large part from a tightly knit, ethnic community, a charge of dishonesty would undoubtedly cause a crushing injury” [92].

Justice Lederman noted that these observations hold true as well for the reputation of a Senator coming from a tightly knit ethnic community.

Other courts in Canada also relied upon this statement from Botiuk.  In Bains v. 1420546 Ontario Inc., 2011 ONSC 3686, they were applied to journalists and businessmen in the Punjabi community in the Greater Toronto Area ([28] to [29]).  In Fung v. Lu, 1997 CanLII 4267 the same approach was taken to a libel published to the Buddhist community In Vancouver

Different language: Similar Meaning in Canada

Judges in Canada, both before and after the internet, when assessing damages referred to the importance of the impact of a libel on the plaintiff’s reputation in his or her ethnic community.

For example, in  Lee v. Kuo, 1996 CanLII 3023 (BC SC) Justice Vickers  awarded Can $90,000 in general damages and Can $60 ,000 In aggravated in relation to a libel publish to the Taiwanese community [80] .  The Judge went on to say

“I have noted that in a small community, an attack on character can have a negative impact on an individual’s social and business life.  For the same reasons, a vindication of character, such as is reflected in this judgment, can have an immediate opposite impact.  In a small community, friends and business associates will soon come to realize that the earlier personal attack was unwarranted.  I believe it will have a restorative effect on Dr. Lee’s reputation” [89].

In Gill v. Singh, 2010 ONSC 191, in a libel action involving members of the Sikh community Justice Lemon said

“Although the libel was published in a small community, it was his small community He appears to have been a leading individual in that community and was forced to leave it for a time because of the admitted libel. The statements were such that they struck at issues that were part of his identity” [29]

Cases in New South Wales

 Several courts in New South Wales using different language reached similar conclusions in a number of cases

In Bishop Mar Meelis Zaia v David Tiglath Chibo [2005] NSWSC 917 the plaintiff was a Bishop and a leading member of the Assyrian community in New South Wales. He was awarded Aus$177,000 damages.

Justice Nicholas held that a significant contributing factor to the plaintiffs his distress was his awareness that defamatory publications were published to members of the Assyrian community, many of whom were members of the Church which he led.

In the case of Suzy David v David Tiglath Chibo [2006] NSWSC 1257 the plaintiff was a lawyer and an active member of the Assyrian community in New South Wales.  She was awarded damages of Aus$217,700. Justice Nicholas noted that the impact of the article included the plaintiff feeling unwelcome and uncomfortable among members of the Assyrian community.

In Konstantinidis v Foreign Media Pty Limited and Ors [2003] NSWSC 1135 Justice Buddin awarded Aus$475,000 for three defamatory broadcasts. He noted that although the immediate audience was relatively modest it was still a very significant audience from the plaintiff’s perspective given his prominent position in the Greek community and the importance of it to his legal practice.

In The Korean Times Pty Ltd & Anor v Un Dok Pak [2011] NSWCA 365  the NSW Court of Appeal  in dismissing an appeal  from a  decision  of a District  Court Judge  awarding Aus $82,000 observed that the plaintiff had been of high standing in the Korean community and that her practice as a solicitor had a mainly Korean clientele.

In these cases, the plaintiffs are often prominent active members in the ethnic community of the including   lawyers, politicians, doctors, or members of the clergy, journalists and businessmen.  Their reputations in this community were often of much greater importance than their reputation in the larger community.

The impact of the internet

The internet aggravates the problem for a number of reasons.  First, internet publication immediately disseminates the statement globally.

The publications can originate from either the new country or the old country of the particular ethnic group. Feuds and animosities from the old country which might have evaporated in the new country can rear their heads again with a few malicious keystrokes on a cell phone.

Moreover, the internet assists people from particular ethnic groups to live in  a new country in their own ethnic digital bubble .On account of this  bubble mentality more and more people are looking at  fewer and fewer varieties of newspapers and magazines and  digital forms of information. Debates are becoming more polarized and it is much easier to operate in your own cyber bubble which often becomes an echo chamber.

The use of a wider variety of social media can accelerate these problems. Internet Campaigns of vilification and defamation using different multiple technological platforms   can increase the damage not merely through repetition but through cruel gratuitous anonymous commentary about the original defamatory statements.

One of the  paradoxical consequences of the  internet  is that  the reach is both global and local  .The opinion of their community  is often  more important to the people who are leaders  and live in the community then  the opinion or statements  of the mainstream community  and the mainstream media .Consequently  statements published in the ethnic media  sometimes   have more impact  than statements published in mainstream media.

David A Potts is a cyberlibel and defamation barrister practising in Toronto.  He is the author of Cyberlibel: Information Warfare in the 21st Century.

 

 


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