One of the great things about social media, including Twitter, is that it gives everyday people the power to voice their opinions to a potentially huge audience. Unfortunately, this is also one of the biggest problems with social media. Anyone who pays attention to current affairs and how they are discussed online knows that while many people practice respectful discourse, just as many people choose to use social media to antagonize others or simply act out in mean-spirited ways. When someone posts messages on social media that upset others, there’s a chance that person might find themselves being publicly criticized for their beliefs or at least how they shared those beliefs. A recent decision from the Ontario Superior Court of Justice, Mondal v. Evans-Bitten, looks at a plaintiff who sought damages based on how people reacted to his tweets and serves as a good example of how courts approach instances where someone is able to “dish it out” but gets offended when it’s their turn to be on the receiving end.

Business owner publishes tweets others find offensive

The plaintiff in the issue runs a medical imaging and diagnostic clinic in Guelph. He is also very active on Twitter and uses his business’ Twitter account to comment on social and political issues. Two tweets he sent out under this account led to the events he eventually sued over.

The first issue arose after the plaintiff tweeted a photograph of Prime Minister Justin Trudeau, holding a flag that combined the Canadian flag and the rainbow flag associated with LGBTQIA2S+ communities. He provided the following commentary with his tweet, writing, “Is it possible that our Prime Minister suffers from Vexiphobia? That which he waves is NOT our national flag. Please do not defile our flag.”

This caught the eye of one of the defendants (“SEB”) who re-tweeted it as well as other tweets published by the plaintiff with a message saying that the plaintiff’s business is “owned and lead by a man who thinks and tweets this stuff.” SEB and the plaintiff were not strangers online, with the court explaining that they had disagreed online in the past.

Two other defendants (“RK” and “MS”) took issue with a second tweet by the plaintiff. This one was in reference to a report that Toronto Mayor John Tory had attended a drag show in the city. The plaintiff added his own thoughts, writing “Where’s the tranny, @John Tory’s got some benajmins for your thong!!!”

RK and MS work for Guelph Family Health. They sent the plaintiff’s tweets to their constituency of physicians, who would be able to refer patients to the plaintiff’s business. The defendants told the physicians they emailed that their organization is committed to “diversity, anti-oppression, and inclusion.”

The plaintiff alleges that the tweets sent by the defendants were defamatory of him and his company and were responsible for loss of business as well personal damages. The defendants sought to have the matter dismissed altogether. They told the court that the claim was what is known as Strategic Litigation Against Public Participation (“SLAPP”) and was intended to silence them on issues of public interest.

Applying the SLAPP test

The court wrote that the Supreme Court of Canada has set out the methodology which must be followed to determine if something should be considered a SLAPP case.

The first step asks whether the expression in question is related to public interest. In this case, the court wrote it would be difficult for the plaintiff to deny the topics were not related to public interest. In fact, the plaintiff’s tweets were specifically aimed at commenting on matters of public interest. In turn, the defendants’ replies also fell under this umbrella, with the court adding that they served as a sort of public service announcement.

The second thing to consider is whether the plaintiff’s actions have “substantial merit.” This means the onus shifts from the defendants to the plaintiff. This step does not require the plaintiff to prove his case, but instead asks the plaintiff to establish his case has a chance. The court looked at the elements of defamation, focusing on a critical question that asks if the defendants’ actions lowered the plaintiff’s professional or personal reputation. The court found that by calling attention to and commenting on the plaintiff’s tweets, the defendants would have lowered the plaintiff’s reputation among reasonable people. The court found it was likely that the plaintiff’s case has merit.

This last question asks whether the defendants have a valid defence. SLAPP methodology states that an action is not to be dismissed if the court determines there is no valid defence available. The defendants, in this case, told the court that the plaintiff’s tweets were political in nature and that their re-tweeting and commentary were equally political, and dealt with facts. The court took some time to discuss Twitter in particular, which is said is a “rhetorically harsh speech environment.” The court found that nothing written by the defendants was any harsher than what the plaintiff himself wrote.

After analyzing these criteria, the court dismissed the plaintiff’s claim as being Strategic Litigation Against Public Participation.

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