Brand Protection in the Internet Age

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Delivered as part of the 3rd annual McCarthy Tétrault LLP Consumer & Retail Summit, this presentation provides an overview on recent developments in the law of defamation in Canada in an online …

Delivered as part of the 3rd annual McCarthy Tétrault LLP Consumer & Retail Summit, this presentation provides an overview on recent developments in the law of defamation in Canada in an online context and tips and strategies on how to protect your brand and your reputation in an ever-changing Internet environment driven by social media and consumer activism.

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  • 1. Protecting Your Brand Reputation in the Internet Age Miranda Lam and Elder C. Marques February 27, 2013McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 2. Your Brand 2McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 3. Consumer Activism 3McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 4. Defamation 4 ¬ What 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 corporations ¬ “Groups” where personal injuries have been sustained Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 SCC 9McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 5. Test for Defamation 5 ¬ When is it actionable? ¬ The impugned words were defamatory ¬ The words referred to the Plaintiffs, and ¬ The words were published Grant v. Torstar Corp., 2009 SCC 61 (“Torstar”) at para. 28McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 6. Test for Defamation 6 ¬ What damages are available? ¬ Damages are presumed, but plaintiff can also prove special damages ¬ Corporations 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 Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 7. Defences to Defamation 7 ¬ Defences ¬ Truth ¬ Absolute Privilege ¬ Qualified Privilege ¬ Fair Comment ¬ Innocent Dissemination ¬ Responsible Communication ¬ Other Considerations ¬ Did the defendants act with malice? ¬ Did the defendants apologize?McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 8. Responsible Communication 8 ¬ New defence confirmed in Torstar (SCC 2009) ¬ Must be on a matter of “public interest” ¬ Applies not only to traditional media ¬ Defendant must have been responsible/diligent and tried to verify the allegations ¬ Relevant factors include: ¬ Seriousness of allegation ¬ whether there was “urgency” in publication ¬ whether the source was reliableMcCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 9. Fair Comment: How Fair is “Fair”? 9 ¬ Test: ¬ The comment must be on a matter of public interest ¬ The comment must be based on fact ¬ The 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 40McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 10. Fair Comment: How Fair is “Fair”? 10 ¬ Test: (cont’d) ¬ “[W]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.” WIC, para. 4McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 11. Fair Comment: How Fair is “Fair”? 11McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 12. Fair Comment: How Fair is “Fair”? 12McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 13. Fair Comment: How Fair is “Fair”? 13 ¬ Freedom of expression ¬ “The language in his publications – including the mock cigarette packages in particular – is extreme, inflammatory, sensationalized, extravagant and violent. ¬ [however]…the protection of a person’s 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 407McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 14. Innocent Dissemination: 14 How Innocent is Innocent? ¬ Hyperlinking Crookes v. Newton, 2011 SCC 47 ¬ Web Hosting Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398 Hemming v. Newton, 2006 BCSC 1748McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 15. Attacking the Attacker 15 ¬ There 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 attacker ¬ Commencing suit against the attacker ¬ Injunctive reliefMcCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 16. Attacking the Attacker 16McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 17. Protecting Your Brand 17 ¬ The best defence is offence: tell your story, especially given the defence of “responsible communication” ¬ Defamation law is a blunt tool: will bringing an action or threatening one make things worse? ¬ Monitor social media networks and use as “early warning system” ¬ Implement a social media policy, train your staff/franchisees/retailers on it, and monitor for compliance. Watch for waivers of privilegeMcCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 18. Protecting Your Brand 18 ¬ Maintain & update your “User Agreement” and “Terms of Use” sections on your website regularly ¬ Train staff on how to respond to complaints appropriately ¬ Ensure you have the appropriate insurance coverage ¬ Remember that the Internet is foreverMcCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 19. POSTS from YELP 19McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 20. POSTS from YELP 20 20McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 21. Questions? Comments? 21McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 22. Your Team 22 Miranda Lam Elder C. Marques Partner Partner (604) 643-7185 (416) 601-7822 mlam@mccarthy.ca emarques@mccarthy.caMcCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
  • 23. VANCOUVER MONTRÉAL Suite 1300, 777 Dunsmuir Street Suite 2500 P.O. Box 10424, Pacific Centre 1000 De La Gauchetière Street West Vancouver BC V7Y 1K2 Montréal QC H3B 0A2 Tel: 604-643-7100 Tel: 514-397-4100 Fax: 604-643-7900 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 Toll-Free: 1-877-244-7711 CALGARY QUÉBEC Suite 3300, 421 7th Avenue SW Le Complexe St-Amable Calgary AB T2P 4K9 1150, rue de Claire-Fontaine, 7e étage Tel: 403-260-3500 Québec QC G1R 5G4 Fax: 403-260-3501 Tel: 418-521-3000 Toll-Free: 1-877-244-7711 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 TORONTO Box 48, Suite 5300 UNITED KINGDOM & EUROPE Toronto Dominion Tower 125 Old Broad Street, 26th Floor Toronto ON M5K 1E6 London EC2N 1AR Tel: 416-362-1812 UNITED KINGDOM Fax: 416-868-0673 Tel: +44 (0)20 7486 5700 Toll-Free: 1-877-244-7711 Fax: +44 (0)20 7486 5702McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca