June 26, 2013 3:33 pm

Online defamation cases often unrealistic for Canadians: Expert

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TORONTO – Canadians being harassed by online bullies may have a hard time pursuing legal action – unless they have deep pockets.

According to Toronto-based defamation lawyer Gil Zvulony, ‘defamatory libel’ exists as a legal provision in the criminal code; however it’s rarely – if ever – used by police.

“[Victims] can pursue it in civil court without question. The practical difficulties for that are sometimes these postings are made anonymously and it’s very expensive to find out who is behind it,” said Zvulony.

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Online defamation cases were brought into the spotlight Tuesday after two Swedish teens were found guilty of defamation for posting derogatory remarks and sexual insults about their peers on photo-sharing app Instagram.

The Gothenburg District Court sentenced a 15-year-old girl to juvenile detention, while her 16-year-old accomplice was sentenced to community service, according to a report by The Local, an English-language news site based in Sweden.

Both bullies were ordered to pay damages to the victims.

But this type of outcome would be rare in a Canadian court, said Zvulony.

“Most victims of online defamation will not sue because it’s too expensive,” said the Toronto-based lawyer.

“If it’s one person constantly badgering or bullying another person they [police] are more inclined to use the ‘criminal harassment’ part of the code versus the defamatory or libel section of the code.”

The last time Canada’s rarely-used law came into effect was 2012 when Ottawa-based restaurant owner Marisol Simoes was found guilty of two counts of libel – facing up to five years in prison – for a two-year tirade of online remarks against a restaurant reviewer who gave her a bad review.

According to a report by the Toronto Star, Simoes set out to “humiliate the reviewer by depicting her as a lonely, unstable, sexually insatiable transsexual.”

Ottawa Police later charged her with the rarely used offence after restaurant reviewer Elayna Katz placed a complaint.

But as Zvulony notes this is a rare occurrence, as police usually jump to criminal harassment charges – particularly in cases where the abusive party continues to hound the victim online.

And if police don’t think there is enough to charge the online bully with harassment?

“More often than not their knee-jerk reaction is to say it’s a civil case and usually the person can’t afford to do that so they are left being victimized,” said Zvulony.

While the outcome of the Swedish defamation case may appear as a victory for victims of online bullying or harassment, cyber-bullying experts caution that legal ramifications will not put a dent in the world’s increasing cyber-bullying problems.

“The whole continuum is really murky,” said Faye Mishna, cyber-bullying expert at the University of Toronto.

“If it is defamation then legal action should be taken – but there has to be things in place like preventative intervention.”

Mishna also noted that in most cyber-bullying cases there is not strong enough evidence of defamation for legal action to be pursued.

© Shaw Media, 2013

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