Social media provides a platform for people to share their
lives, opinions and views. Sometimes these platforms are used by
employees to make statements about how they were treated during
employment and their views about the employers. These statements
can be far reaching and if negative, damaging to an
employer’s reputation. A
recent Ontario decision shows how difficult it can be for
an employer to have a court order the removal of allegedly
defamatory social media posts.
What Happened
An employee was terminated by a company allegedly because of her
hostile attitude, declining performance, and damage done to
customers’ property. The employee believed that she was
terminated because of her support for the Black Lives Matter (BLM)
movement.
After she was terminated, the employee posted on Twitter and
Instagram alleging that she was terminated by the company for
supporting BLM. She claimed the owners of the company were racists
who used racist slurs. She alleged that the company only cared
about profiting off Black culture. She also claimed the company was
a bad employer.
The company and its owners sued the employee for defamation.
Before trial, the owners asked the court to order the employee to
remove the social media posts containing allegations of racism, and
to refrain from making similar posts.
The Decision
The judge refused to make the order requested. The judge said
that type of order before trial was rare in a defamation case. It
would only be made if a strict test was met:
- there must be clear defamation;
- if there is an intention to defend the statements as
substantially true or as fair comment, it must be clear the defence
will fail; and, - there must be irreparable harm if the order is not
granted.
That high threshold reflected the importance of protecting free
speech, especially in public interest matters. The judge said the
public has an interest in knowing about the company –
particularly its stance on social and political issues and
treatment of employees – so the public can decide whether to
support the company by paying for their services.
The judge agreed that calling a person or company racist may be
defamatory. However, looking at the evidence filed, the judge said
it may be possible to show the statements were substantially true
or fair comment. In particular, the judge rejected the
company’s arguments that a person could not honestly
express the opinion that the company and its owners were racist,
and that at best, the social media posts may have shown that the
employee was mistreated at work. The judge said this ignored the
experiences of the racialized community who were more attuned to
and aware of both overt and passive acts of racism. The judge said
the lived experiences of Black, Indigenous, and People of Colour
(BIPOC) and other racialized communities experiencing workplace
racism cannot be ignored in assessing the fair comment defence. The
judge said doing so would be an injustice. It would, as the judge
wrote, “overlook the systemic racism they have experienced
and continue to experience in the workplace — experiences
that may be viewed differently by persons who are not members of a
racialized community.”
Since the judge was unable to find that the defence of
justification and fair comment would inevitably fail, the judge did
not grant the order requested.
Takeaways for Employers
This case was decided based on written evidence submitted by the
parties. The evidence was often contradictory and none of it was
tested by cross-examination. What is clear is that the parties had
very different views about what happened at work and what it meant.
The judge understood this may be, in part, due to the different
lens through which the parties viewed events based on their
different lived experiences. The judge was willing to consider the
lived experiences of BIPOC when assessing the defence of fair
comment in allegations of defamation based on racist
statements.
This case shows that only in the clearest of cases will a court
order, before trial, an employee to remove allegedly defamatory
statements posted online. One way to reduce the risk of similar
public statements being made is to treat all employees fairly with
dignity and respect. This includes learning about the diverse lived
experiences and perspectives of employees, and taking active steps
to combat racism and discrimination at work. It does not mean
employers cannot deal with legitimate performance issues or other
misconduct at work, but only that employers should act fairly and
in good faith when doing so.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
