2024 February 26

Durand v. Higgins, 2024 ABKB 108

The Alberta Court of Kings Bench granted summary judgment to the plaintiff, a Quebec-based musician, ordering the defendant California resident to pay defamation damages aggregating $1,500,000.  The Court noted that “[a]ll the material posted on the [defendant’s] Instagram Account was second or third-hand, consisting of reposts, which themselves linked material from elsewhere on social media. …An obvious collateral purpose of the Instagram Account wass to ‘cancel’ [the plaintiff], frequently tagging his agent, producers, and venues where he was to perform.”  Discussing liability for reposting other social media, the Court stated that “[t]here appears to exist a common misconception among social media users that reposting defamatory content generated by others is a protected activity, under the doctrine of fair comment or otherwise.  This misunderstanding should be correctly as firmly as possible.  A repetition, republication, or repost of a defamatory statement is every bit as defamatory, and every bit as subject to liability in tort, as the original statement. ‘No one is justified in stating false facts about another merely because someone else has done so.’”  “The ‘repetition rule’ in common law holds that every person who repeats a defamatory statement is liable to the same extent as the person who originally published it … the Supreme Court has observed that ‘[m]aintaining the repetition rule is particularly important in the age of the Internet, when defamatory material can spread from one website to another at great speed.”

In addition to awarding damages for actual loss of income in the amount of $1 million, the Court assessed general damages in the amount of $350,000 plus aggravated damages of $150,000.  The Court found that the defendant’s campaign of defamation became “’high-handed, spiteful, or malicious’ … when she ignored obvious information to the contrary, reposted and kept up a libel that was immediately clarified by the original poster as not being about [the plaintiff], made no mention of contradictory accounts refuting what she had posted, and pursued a campaign to cancel a complete stranger on the strength of the flimsiest online dross.”   The Court also granted a permanent injunction prohibiting any statement, original or derived from other existing material or posts in the public domain or otherwise, conveying the defamatory meanings which were the subject of this lawsuit.  The Court noted that this judgment “highlight[s] the risks of blithely reposting often anonymous and deeply defamatory material from the lawless, fact-averse wildlands of social media.”