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Defamation suits related to posts on social media are on the rise, according to a Canadian expert on internet and privacy law — but there is one guaranteed defence available to people facing those kinds of lawsuits.
“It’s a matter of speaking the truth … For the most part, speaking the truth is an absolute defence to defamation,” according to Allen Mendelsohn, a Montreal lawyer who specializes in internet technology and privacy law and gives a lecture on the topic at McGill University’s faculty of law.
In general, Mendelsohn said that in his private practice, he’s had a number of people come to him in recent years enquiring about “potentially suing someone for defamation based on something that was said on Facebook, on Twitter, whatever else, in an email.”
“I can say, certainly, it’s not something people are willing to put up with anymore,” he said, adding that the “average person” does not understand defamation law at all and “feels free to spout out anything they possibly want to on the internet.”
“I think people still have an impression that they can say whatever pretty much they want on the internet. It’s not seen as having the same sort of permanence, for lack of a better word … as making some comments to a print reporter or on television,” he said.
However, it also goes the other way.
“In defence of the people writing these things, for the most part, quite often, the person has the right to say what they said. People misunderstanding the law of defamation will want to sue someone for defamation when someone was really only giving an opinion about something,” he said.
Mendelsohn is not involved with the defamation lawsuit filed by former Yukon College instructor Charles Stuart against a student who, in a Facebook post, alleged he had sexually assaulted her. However, he has reviewed Stuart’s statement of claim.
“If (the student) has proof that she was, in fact, sexually assaulted and the statement she made is, as a result, true, well, then there’s no defamation there. The truth is certainly an absolute defence to defamation,” he said, adding that personally, he is a supporter of the #MeToo movement, which often sees survivors of sexually violence “calling out” their abusers online.
“If they have the truth behind them, they should speak up,” he said.
Mendelsohn also had advice for anyone posting anything to social media in general.
“Whenever you’re about to write anything of social media, think before you post. Back away from your keyboard or your computer or your phone and think about it, for at least three minutes,” he said. “Decide whether you really want to post it or not. Think before you post, that’s what I tell everybody.”
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