2022 November 29

Kaur v. Virk, 2022 ONSC 6697

The Ontario Superior Court of Justice declined to award libel damages to the plaintiff over videos posted by the defendant on three occasions in May, 2021.   “Software programs or ‘apps’ such as WhatsApp, TikTok or Instagram are platforms that, while popular, as not so well known (at least to me) that the general public knows what they are, or how they operate.”  “No expert evidence was given about the operation or outward facing dimensions to WhatsApp on which [the defendant] posted the first video in May 2021 to her own account.  I have no way of knowing if [the defendant] ‘published’ the video by taking this step, or if posting it was tantamount to filing an entry into an electronic diary or sharing thoughts with a chosen confidant.  The court cannot conduct its own research outside of the evidence given on a hearing to determine facts.  It is for this reason I have not ‘googled’ how WhatsApp, TikTok or Instagram work.  Nor have I visited their websites to read if they are accessible to others, and if so, how a member’s user circle or anyone searching the internet may find them.” “In the absence of evidence on the nature of these platforms and the access available to them by others, I find that [the plaintiff] has not proven that [the defendant has] ‘published’ this video.”  The Court held that two other videos posted to TikTok on different occasions were not defamatory.  The plaintiff’s remaining claim that a video posted to the defendant’s WhatsApp account publicly placed the plaintiff in a false light warranted an award of $5,000 general damages and $30,390 special damages for the plaintiff’s loss of income as a mortgage agent from July to October 2021.  In this regard, the Court reasoned: “While the posting to WhatsApp was not ‘publishing’ in the sense of that term to prove defamation, the posting at source, combined with the reasonable foreseeability that it could be copied to another forum that could publicly place [the plaintiff in a false light], is sufficient to entitled [the plaintiff] to judgment.”