Protecting Your Brand Reputation in the Internet Age

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Transcript of Protecting Your Brand Reputation in the Internet Age

  • Protecting Your Brand Reputation in the Internet AgeMiranda Lam and Elder C. Marques

    February 27, 2013McCarthy Ttrault S.E.N.C.R.L., s.r.l. /


  • Your Brand*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Consumer Activism*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /


  • DefamationWhat is defamatory?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 [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] 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. Hence the test is an objective one ...

    Color Your World v. Canadian Broadcasting Corporation (1998), 38 O.R. (3d) 97 (C.A.) Who can be defamed? Individuals, including corporationsGroups where personal injuries have been sustained

    Bou Malhab v. Diffusion Mtromdia CMR Inc., 2011 SCC 9*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Test for DefamationWhen is it actionable?

    The impugned words were defamatoryThe words referred to the Plaintiffs, andThe words were published

    Grant v. Torstar Corp., 2009 SCC 61 (Torstar) at para. 28*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Test for DefamationWhat damages are available?Damages are presumed, but plaintiff can also prove special damagesCorporations were traditionally limited to special damages, but these restrictions have been loosened and they can even be entitled to punitive damages

    Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.)*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Defences to DefamationDefencesTruthAbsolute PrivilegeQualified PrivilegeFair CommentInnocent DisseminationResponsible CommunicationOther Considerations Did the defendants act with malice? Did the defendants apologize?

    *McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Responsible Communication New defence confirmed in Torstar (SCC 2009)Must be on a matter of public interestApplies not only to traditional mediaDefendant must have been responsible/diligent and tried to verify the allegationsRelevant factors include:Seriousness of allegationwhether there was urgency in publicationwhether the source was reliable

    *McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Fair Comment: How Fair is Fair?Test:The comment must be on a matter of public interest The comment must be based on factThe comment, though it can include inferences of fact, must be recognizable as comment; The comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?, and Even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice

    WIC Radio Ltd. v. Simpson, 2008 SCC 40*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Fair Comment: How Fair is Fair?Test: (contd)

    [W]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.

    WIC, para. 4*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Fair Comment: How Fair is Fair?*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Fair Comment: How Fair is Fair?*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Fair Comment: How Fair is Fair?

    Freedom of expressionThe language in his publications including the mock cigarette packages in particular is extreme, inflammatory, sensationalized, extravagant and violent.[however]the protection of a persons ability to exercise his or her right to freedom of expression in order to attempt to influence public opinion on legitimate public issues is the objective of the defence of fair comment. The defence cannot be defeated if Mr. Staniford was doing the very thing that the defence was designed to protect.

    Mainstream Canada v. Staniford, 2012 BCSC 1433 at paras. 198 and 201

    Engaging in the conversation: a different standard?

    Baglow v. Smith, 2012 ONCA 407

    *McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Innocent Dissemination: How Innocent is Innocent?Hyperlinking

    Crookes v. Newton, 2011 SCC 47Web Hosting

    Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398Hemming v. Newton, 2006 BCSC 1748*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Attacking the AttackerThere are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then hides behind the electronic curtain provided by the Internet.

    R.F. Goldstein J. in Manson v. John Doe. No. 1, 2013 ONSC 628 at para. 20

    Uncovering the attackerCommencing suit against the attackerInjunctive relief

    *McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Attacking the Attacker*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Protecting Your BrandThe best defence is offence: tell your story, especially given the defence of responsible communicationDefamation law is a blunt tool: will bringing an action or threatening one make things worse?Monitor social media networks and use as early warning systemImplement a social media policy, train your staff/franchisees/retailers on it, and monitor for compliance. Watch for waivers of privilege

    *McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Protecting Your BrandMaintain & update your User Agreement and Terms of Use sections on your website regularlyTrain staff on how to respond to complaints appropriatelyEnsure you have the appropriate insurance coverageRemember that the Internet is forever

    *McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • POSTS from YELP*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • *POSTS from YELP*McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Questions? Comments?

    *McCarthy Ttrault S.E.N.C.R.L., s.r.l. /

  • Your Team*Miranda LamPartner(604) 643-7185mlam@mccarthy.caElder C. MarquesPartner(416) 601-7822 emarques@mccarthy.caMcCarthy Ttrault S.E.N.C.R.L., s.r.l. /

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    QUBECLe Complexe St-Amable 1150, rue de Claire-Fontaine, 7e tage Qubec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. /