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.
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 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.
If you have questions about this decision, please contact the author or your regular Fasken lawyer.