Defendant ordered to remove defamatory posts and refrain from publishing defamatory statements
The Ontario Superior Court has found a woman liable for damages following social media posts which falsely accused two women of being racists and mocking the murder of George Floyd.
In May 2020, the plaintiff, Shania Lavallee took a short video of her co-plaintiff, Justine Lavallee and her boyfriend, Gilmour Driscoll-Maurice, engaging in play fighting. She shared the video with her Snapchat followers. Unbeknownst to Shania, one follower took a screenshot of one scene in the video and shared it with her followers. The screenshot depicted Justine face down on the ground with Gilmour on top of her, holding Justine’s hands behind her back and pressing his knee on her back.
The defendant, Solit Isak, received a copy of the screenshot and shared it with her followers, denouncing the actions of Justine, Shania, and Gilmour as racist and accusing them of mocking George Floyd’s death. She asked her followers to join her in identifying and denouncing their behaviour. Solit’s online campaign against them was successful.
As a result, Justine and Shania were fired from their jobs and deprived of other employment opportunities. Their home was vandalized. Their family and friends were subjected to death threats and harassing phone calls and social media messages. In response to the backlash, Shania issued an apology for posting the video. She said that while she recognized the insensitivity of the video, she denied being a racist and mocking George Floyd’s death.
Justine and Shania brought an action for defamation against Solit. They alleged that they were seriously harmed because of her actions. Solit relied on the defences of justification and fair comment.
In its decision, the Superior Court held that Solit had failed to prove a valid defence and therefore, should be held liable for defamation.
The court explained that to succeed on a defence of justification, a defendant would be required to adduce evidence showing that the statement was substantially true. Solit contended that the screenshot was substantially true because Shania posted a public apology and admitted that the act was insensitive. The court disagreed.
The court stated that Shania’s apology was not evidence proving the screenshot as an act of racism, but rather a response to the backlash. Shania had always maintained that Solit’s allegations were false and thus, her apology did not constitute an admission of guilt, the court noted.
Solit claimed that considering Justine and Shania had lost their jobs at certain organizations, the act of racism that she alleged in her posts was true. The court rejected her claim. “While each of these organizations are entitled to have opinions and act upon them, such opinion is not evidence that the alleged act of racism is true, it is simply evidence of an opinion,” the court stressed.
The court also determined that Solit made no efforts to see or verify the actual content of the video and failed to prove that comments or remarks related to George Floyd, police brutality or racism were spoken in the video.
“Solit can only rely on the defence of justification if she can prove the truth of the defamatory statements. She has not. [Her] allegations against Justine and Shania have no basis in fact. Therefore, the defence of justification is not available,” the court said.
The court also ruled that Solit could not rely on the defence of fair comment because the defamatory words were neither based on fact nor recognizable comment.
The court found that Solit did not provide any background facts in her statements, not even in general terms. Rather, on unsubstantiated evidence that “police brutality” was said in the video, she immediately posted the screenshot and accused Justine, Shania, and Gilmour of mocking the death of George Floyd, the court said. The court added that her statements accusing them of being racists were not recognizable comment, but rather expressions of fact.
Aside from granting general damages, the court issued a preliminary injunction requiring Solit to remove the defamatory posts and refrain from publishing defamatory statements in the future about Justine and Shania.