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CONDOMINIUM'S DUTY TO INVESTIGATE SOCIAL MEDIA DEFAMATION

It seems obvious to say that condominium corporations are physical communities in the traditional sense of the word – while people may no longer live in huts adjacent to a cultivated field of wheat, neighbours still live in close proximity to each other. The transmission of noises, odours, and other nuisances mingle with the in-person interactions between individuals of all different walks of life, who may not always get along.

What may not be so obviously apparent is that people in condominiums also transmit ideas, words, and communications to each other through non-physical means. In today’s day and age, condominium dwellers’ physical proximity with each other is also often coupled with an online presence that forms around that geographic community. Whether it be in an online discussion group within the condominium’s official Internet portal, an informal Facebook group started by owners, a chain email discussion, or even through a Twitter exchange between residents, owners and residents in condominiums are not only involved in face-to-face personal exchanges but more often than not, through their Internet presences as well – especially because in many buildings, not all unit owners live on-site.

For example, many condominium communities now set up informal Facebook groups – some of them are open to the Public, and some of them are Closed and exclusive to invited members only.

Unfortunately, some of these discussions online, in Facebook groups or otherwise, can get carried away. Emotions can naturally run high; these are the homes that people live in, and often are an owner’s largest financial investment. People may have many legitimate complaints about their condominium, but these concerns must be expressed within the bounds of civil discourse.

It’s when these online discussions go beyond civil discourse and ventures into “defamation” territory, that the condominium corporation itself might have to get involved.

Condominium Corporation’s Duty to Investigate Defamation

In July of 2017, the Ontario Superior Court of Justice released its decision in the case of Carleton Condominium Corporation No. 282 v. Yahoo! Inc., 2017 ONSC 4385. In this case, the condominium corporation was seeking to force Yahoo! Canada to disclose specific user information relating to a Yahoo! email account that had been sending anonymous emails to various owners and residents of the condominium. These emails contained defamatory statements against members of the Board of Directors.

In ruling that Yahoo! should indeed be forced to disclose the user’s information to the condominium corporation, the Judge relied on Section 17(3) of the Condominium Act, 1998S.O. 1998, c. 19 (the “Act”) which states:

"The corporation has a duty to take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules."

As can be expected of the law, what is “reasonable” in the circumstances is a fact-specific analysis that will differ between cases. However, condominium corporations have a general duty under the Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”), to protect the Property Manager and their staff from workplace harassment.

Even though the anonymous emails targeted the condominium’s Board members and not Property Management, the Judge in CCC 282 v. Yahoo! found that the condominium corporation’s application to the Court for an order requiring Yahoo! to disclose the user’s information was a “reasonable step” taken pursuant to Section 17(3) of the Act. The Judge relied on the Superior Court of Justice’s decision earlier this year in York Condominium Corp No. 163 v. Robinson, 2017 ONSC 2419, which cited the statutory prohibition against dangerous conditions under Section 117 of the Act to hold that the condominium corporation has a duty to prevent activities that are likely to cause psychological harm. This would include any psychological harm inflicted by the harassment of a Board member; after all, outside of duly-constituted Board meetings, a Board member is simply another owner or resident of the condominium. Despite what some unit owners may think, directors are human beings too.

Therefore, where a Property Manager or a Board member is being defamed online, the condominium corporation should take steps to investigate – and if necessary, to abate – the defamatory communications. As the Supreme Court of Canada noted back in 1995,

"A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime."

With the advent and dominance of the Internet, not only is the impact of defamation on a person’s reputation as strong as ever, it is also all-too-easy to spread this “cancerous evil” to a large and perhaps unlimited audience. All you have to do is push a button.

Veil of Anonymity is Not Bulletproof

As anyone who’s ever received “Friend Requests” knows, and despite Mr. Zuckerberg’s best efforts to require that a user’s identity be tied to that individual’s actual identity in “real life”, some Facebook accounts are not so easily linked to a real person. Even with anonymous emails being sent to the community as in the CCC 282 v. Yahoo! case, almost anyone can set up an email account, and there are websites that let you set-up a temporary email address which only lasts a few minutes before disappearing. If the Facebook Group’s membership is closed off to the Public, it is difficult for an outsider to figure out who is saying what about them inside that Group discussion.

Online, people can shield their identity using a creative username, a fake email address, a fake name, or a fake profile photo. Not everyone will air their grievances in a defamatory manner using their real name and easily identifiable social media presence – unlike last year’s case of Pritchard v. Van Nes, 2016 BCSC 686, where Ms. Van Nes used her own Facebook profile to post unfounded allegations and innuendo about her neighbour in a Public post to her 2,000+ Facebook Friends (we have discussed this case previously as well).

However, the veil of anonymity can be pierced. Armed with a court order, the condominium corporation can obtain specific user information from Internet Service Providers and track down the sender or the original poster.

If You Start a Fire, Be Ready to Face All of the Consequences

Once found, the original poster can be held liable for not only their own posting of the defamatory statement, but also for anyone else who left a Comment, Liked, or Shared that post. The virality of social media was recognized by the B.C. Supreme Court in the aforementioned Van Nes decision last year, where the Judge held that the very nature of social media platforms like Facebook, in encouraging the mass dissemination of information, means that the original poster ought to have known that their defamation would spread.

Ms. Van Nes’ post, set to Public visibility, was found by the Court to have created a reasonable expectation that other people would make further defamatory statements about her neighbour, who she insinuated was a pedophile. Ms. Van Nes ought to have known that her post would be seen as a “call to action”, even if she had only left the post up for a little more than a day. Within the post’s lifespan of 27.5 hours, not only did her post go viral on Facebook with people from all over Sharing her post, one individual even emailed the principal of the school where her neighbour worked, treating Ms. Van Nes’ allegations as true. The Court ultimately held Ms. Van Nes responsible for it all, and ordered her to pay $65,000 for her defamation against her neighbour – all due to a single Facebook post and its subsequent fallout.

As the Judge in Chilliwack, British Columbia recognized, the person who flicked the cigarette butt ought to be held responsible for the forest wildfire that resulted.

The Bottom Line: Don’t Burn Yourself with a Hot Take

At paragraph 119 of Van Nes, the Judge held that:

"… the potential in the use of internet-based social media platforms for reputations to be ruined in an instant, through publication of defamatory statements to a virtually limitless audience, ought to lead to the common law responding, incrementally, in the direction of extending protection against harm in appropriate cases."

Simply put, don’t become an “appropriate case” by being inappropriate online. Otherwise, your condominium corporation’s common expenses – which you yourself pay into – might end up being spent in a defamation lawsuit against you for what simply amounted to a “hot take”.

 


By Victor Yee - September 2017
Hons. B.A., J.D.

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All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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