Calling Someone a “Liar” Online: Is that Defamation, or Merely “Comment”?
In an interesting recent case heard by the Ontario Court of Appeal, the court was asked to consider whether calling someone a “liar” in an online blog was merely a comment, or whether it was tantamount to defamation. (And to make the issue more interesting, both the object of the slur, and the person making it, happened to be lawyers).
The plaintiff Awan was a law student at the time of the incidents, and has since gone on to practice law in Saskatchewan. The defendant, Levant, is an outspoken political commentator, journalist, and blogger who published various articles and blogs on his own website.
Awan sued Levant in damages for defamation in connection with nine blog posts Levant published on his blog between 2008 and 2010, each bearing a headline calling Awan a “liar”, and featuring further additional unflattering commentary in the body. Awan also asked the court to order the offending blog posts to be taken down.
To make a long back-story short: Levant’s published name-calling arose in what purported to be reports of a human rights tribunal hearing at which Awan testified. That hearing was triggered by formal complaints by Awan and fellow students over a Maclean’s magazine cover story titled “The Future Belongs to Islam” which they alleged was Islamophobic in tone. As part of the tribunal’s fact-finding, Awan gave evidence about a one-time meeting he and his fellow students attended with senior editorial staff at Maclean’s. Awan’s testimony at the hearing was what prompted Levant to use the term “liar” in his blogs, among other unflattering names.
After taking into account the overall circumstances, including the likelihood that Levant’s pejorative blog posts could be spread widely over the internet, the trial judge found that all nine of them were clearly defamatory of Awan, in that they conveyed to anyone reading that he:
- was a dishonest person and a liar;
- tried to “shake down” Maclean’s;
- was incompetent, unethical, and unfit to be a lawyer;
- was an anti-Semite;
- used the courts to bully his opponents; and
- had extreme, intolerant views.
As to the effect of the defamation, the trial judge wrote:
In this case, the impugned words include numerous meanings that would, in the ordinary course, be readily regarded as defamatory. The defendant [Levant] has said, over and over again, that the plaintiff [Awan] is a liar. This alone would tend to lower [Awan’s] reputation among ordinary right-thinking members of society. It obviously bears the meaning that [Awan] is dishonest, and casts doubt on his integrity, the most important attribute of any lawyer. … Honesty and integrity are no less important for a law student who is about to embark on a career as a lawyer.
Moreover, the usual defences to defamation that might absolve Levant were negated by the fact he had posted maliciously. Levant was ordered to pay Awan $50,000 in general damages and $30,000 in aggravated damages.
Levant appealed, unsuccessfully.
Among the rejected legal arguments was that – contrary to what the trial judge had found – Levant’s use of the term “liar” was merely a “comment” made as part of an online discourse, and was not tantamount to defamation of Awan in the ordinary sense. While conceding that “calling someone a liar when discussing a matter of public interest or discourse would more likely be found to be a comment rather than a fact”, the Appeal Court nonetheless found that it was open to the trial judge to conclude otherwise in this case, based on the presumed perceptions of a reasonable reader. There was no legal basis on which the Appeal Court should interfere with that factual finding.
The Court of Appeal also confirmed that Levant’s defences to defamation were foreclosed due to his evident malice, stating:
I find that the defendant’s dominant motive in these blog posts was ill-will, and that his repeated failure to take even basic steps to check his facts showed a reckless disregard for the truth.
As for the nature and seriousness of the defamatory statements, they are extremely serious. They go to the heart of both the plaintiff’s reputation as a lawyer and as a member of our society.
Levant’s appeal was accordingly dismissed.
For the full text of the decision, see:
Awan v. Levant, 2016 ONCA 970 (CanLII)