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Municipal politicians and online defamation
By John Mascarin

June 10 2011 issue

[Illustration by Peter Bono for The Lawyers Weekly]
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The conduct of government, at any level, is fertile ground for debate, discussion and commentary. Indeed, democratic government is founded on the fundamental right of all persons to express their individual political views and ideas within the law. Given its direct and intimate impact on daily life, municipal politics seems to engage the local citizenry with an emotional intensity that is not typically replicated at the provincial or federal levels.

What happens when criticism crosses the line from insightful and informed to vitriolic and malicious? How much worse does it get when communications are broadcast instantaneously to a worldwide audience via the Internet?

Individuals and corporations can sue for defamation, but a municipality cannot. The Ontario Superior Court of Justice in Montague (Township) v. Page, [2006] O.J. No. 331, wrote that allowing a municipality to protect its reputation would be antithetical to the notion of freedom of speech and would be inconsistent with the guarantee to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms.

A few months later, the same court issued its judgment in Halton Hills (Town) v. Kerouac, [2006] O.J. No. 1473. In this case, the municipality and its director of parks commenced a defamation action against a local Internet-based news provider. Again, the court held that a municipality could not bring an action in defamation.

While a municipality cannot sue in its own name, can it pay for the legal costs incurred by a member of council in bringing a defamation suit?

In 2009, the City of Toronto considered the issue of paying for a councillor’s defamation suit. City council considered amendments to its “Indemnification Policy for Members of Council and Defamation” which would provide for the funding of defamation actions initiated by members of city council. Ultimately, city council declined to amend the policy, but it did pass a bylaw to indemnify a councillor for her legal expenses related to a defamation action against a publication that accused her of having received improper campaign donations from a developer. The publication alleged the donations were paid to the councillor to support the developer’s application before the Ontario Municipal Board, whereas the member had actually been actively opposing the development.

The reimbursement payment was challenged in Holyday v. Toronto (City), [2010] O.J. No. 3083 and the Ontario Divisional Court ruled that it would not interfere with city council’s decision to authorize the reimbursement pursuant to s. 222(2) of the City of Toronto Act, 2006 (a comparable provision to s. 283(2) of the Municipal Act, 2001).

Defamatory comments are frequently posted on the Internet to message boards, websites and weblogs and are sent via email by Internet users using pseudonyms, opening fake accounts or making use of Internet cafés. Aided by the cloak of anonymity and the potential for widespread distribution, the Internet can be used without the fear of repercussions. What can municipalities and politicians do about online defamation, particularly in the case of anonymous defamatory statements?

First, if the communication defames the politician in a way that arises purely from his or her conduct as a member of council and can be seen as attacking the municipality as a whole, the municipal council can pay for the costs of a defamation claim to a member as a reimbursement of expenses incurred as a member of council. Second, the law, while protecting an individual’s right to privacy, will only do so if a person has acted within the law. A person’s right to privacy will not be protected in the face of obscene, hateful or defamatory communications.

Any person who believes he or she has been defamed by an anonymous online communicator can seek what is called a Norwich order. In Warman v. Wilkins-Fournier, [2010] O.J. No. 1846, the plaintiff was granted an order requiring the administrators and moderators of a political and social Internet message board to disclose information that could identify anonymous individuals who had posted allegedly defamatory comments online.

During the 2010 municipal campaign in Meaford, Ont., one or more anonymous persons posted defamatory statements about the mayor, other members of council and municipal staff on a political blog. The comments were alleged to be personal, malicious and libellous. The municipality successfully applied to the courts seeking that Google Inc., which was host to the political blog, provide the IP addresses/numbers of the computers from which the blogs originated, and that Bell Canada, as the Internet service provider, disclose the identities and contact information of persons responsible for the computers.

Critics of such actions contend that they will have a chilling effect on freedom of speech which is essential for the survival of a politically vibrant and engaged local government. This may be true, but there is nothing wrong with a commentator first giving thoughtful consideration prior to disseminating his or her views to a worldwide audience.

This is especially important when notions of free speech or expression are not absolute. After all, s. 1 of the Charter stipulates that while a person’s rights are guaranteed, they remain subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

John Mascarin is a partner with Aird & Berlis LLP in Toronto. He is a certified specialist in Municipal Law, Local Government and Land Use Planning & Development, and an adjunct professor at Osgoode Hall Law School.

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