In a recent B.C. Supreme Court case (Rook v Halcrow 2019 BCSC 2253), with its ruling published Tuesday, November 26th, 2019, a man sued his ex for defamation resulting from online posts she made alleging that he was a cheater, an out-of-control drunk, a fraud, a failure with no ambition, and a carrier of STDs.
Justice Elliott Myers ordered the Vancouver woman to pay more than $200,000 to the man after finding that she had damaged his reputation on multiple social media outlets, including Instagram. In the ruling, more than 85 offending posts were detailed in the Appendix which took up the last 44 pages of the document.
Mr. Brandon Rook and Ms. Noelle Halcrow had been in an on-off relationship from August 2015 to July 2016. Mr. Rook broke off the relationship each time. When the final break came in July 2016, the defamatory online posts surfaced a month later and continued into August 2017.
Mr. Rook was a director and a Chief Executive Director of a mining company and currently works as a business consultant. Ms. Halcrow was a former Christian Dior Perfumes employee and was unemployed at the time of the ruling.
Ms. Noelle Halcrow’s defence was an overly simple one — she did not do it. She blamed her family and friends for the postings. But at trial, Ms. Halcrow did not take the stand or call evidence for her case.
Justice Myers found credibility in the expert evidence before him. The expert analyzed the emails from Ms. Halcrow to Mr. Rook and determined that they were sent from a specific I.P. address. The same I.P. address was used to set up the Instagram accounts where the postings were made. Secondly, Ms. Halcrow sent numerous texts to Mr. Rook about taking down the posts and threatening to repost or create new ones. Thirdly, the phraseology used by Ms. Halcrow bore remarkable similarities to her texts to Mr. Rook. Lastly, there was no evidence of anyone else with the motivation to make such posts against Mr. Rook and no one else had the personal details alleged in the posts.
Justice Myers rejected Ms. Halcrow’s defence and found that “the evidence is clear and compelling that Ms. Halcrow did, in fact, put the posts on the websites.”
But make no mistake, defamation has a certain threshold. So how did Mr. Rook succeed in his defamation case against Ms. Halcrow? Before arriving at his finding, Justice Myers defined the test for defamation in para. 22 of his ruling:
“ A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society: Vander Zalm v. Times Publishers, a Division of F.P. Publications (Western) Ltd. (1980), 18 B.C.L.R. 210 (C.A.) per Seaton J.A. at para. 17; per Hinkson J.A. at para. 35.”
Mr. Rook also argued that the online posts were defamatory in their inferential meanings. Justice Myers examined this line of argument and defined an inferential meaning as one “…which the ordinary person, without special knowledge, will infer from the words complained of and this meaning must be determined objectively.” (Lawson v. Baines, 2012 BCCA 117 at para. 23).
In assessing whether the posts fell within the test of defamation, Justice Myers concluded that the posts met the standard and are defamatory in both their literal and inferential meanings.
In para. 33 of his ruling, Justice Myers highlighted that express malice would exist if a defendant published defamatory words:
a) knowing them to be false;
b) with reckless indifference as to their truth;
c) for the dominant purpose of injuring the plaintiff out of spite or animosity; OR
d) for some other dominant purpose which is improper or indirect.
Fulfilling any one of these scenarios would constitute express malice and Justice Myers concluded that Ms. Halcrow was “motivated by malice” and “mounted a campaign against Mr. Rook that was as relentless as it was extensive.”
Justice Myers was clear in para. 31 that “there is a presumption that defamation statements cause damage.”
In arriving at a figure for damages, Justice Myers explained the three distinct functions for ‘general damages’ in a defamation case at para. 27:
a) to act as a consolation to the plaintiff for the distress he or she suffers;
b) to repair the harm to his or her reputation; and
c) as a vindication of his or her personal or business reputation.
Justice Myers highlighted at para. 28 that the amount must be high enough to resonate the severity of harm done to Mr. Rook’s reputation and that aggravated damages may be appropriate if the defamer was motivated by spite and malice.
Because the law of defamation protects a person’s reputation, it logically follows that the defamatory statements would cause more hurt towards a person with a good reputation. Hence, Justice Myers considered Mr. Rook’s position and standing in the community as a director of public companies in calculating compensatory damages in a defamation action. Mr. Rook also gave evidence as to the anxiety that the posts had caused him which was aggravated by their references to his ex-wife and daughter.
In reaching his damages award, Justice Myers cited several cases of online defamation that awarded damages in a range between $115,000 to $410,000.
Justice Myers awarded the following in favour of Mr. Rook:
Mr. Rook was also entitled to court costs and an injunction was made to ban anyone from reposting or commenting on any of the defamatory messages online. The damages awarded in total are in excess of $200,000!
It is perhaps most interesting to note what Justice Myers considered to be ‘wide reading’ of online posts. In the Appendix of the ruling, the comments and viewings were recorded under each post. Only several posts had 1000+ views and most posts had 0 to 2 comments.
Most people nowadays have a few hundred friends on Facebook and other social media outlets. With a couple of shares, it would not be difficult to reach 1000 views. People might have thought that ‘wide reading’ would be relevant for Instagram celebrities that regularly receive over 1 million likes, but with Justice Myers’ ruling, ‘wide reading’ can be deemed as low as 1000 views.
In this case, Justice Myers emphasized the courts’ awakening to internet misuse in the first paragraph of his ruling: “The courts have recognized that the internet can be used as an exceedingly effective tool to harm reputations. This is one such case.”
Have questions or need advice? Contact us to schedule your free consultation.