How nasty can your Google Review be?

A couple in Ontario contracted Benchwood Builders to renovate their home. Things didn't go well, and Benchwood sought to place a lien on the property for unpaid bills.

When the couple discovered that Benchwood had posted photos of their home to showcase its work, the couple was not pleased.

They responded, stating:

Benchwood “misrepresent themselves to the consumer” ... That their experience with them was “horrific” and a “nightmare” ... They are misrepresenting our project as a ‘success story’ which it definitely IS NOT” ... “These are just a few pix of the utter mess they left behind despite our having paid them an extraordinary amount & we’re having to clean up after them at great cost.” Benchwood and its subcontractors were “in on this dishonest operation together,” “operate in a dishonest manner” and did a “shotty job.”

On Benchwood's Facebook page, the couple said that Benchwood trespassed and accused its director of threatening and making false assault charges against women. They called the director “a miserable con artist” and a “dirtbag.”

Benchwood brought an action for defamation. The couple defended the action: “all of the statements are true, fair comments, justified, honest opinions, subject to qualified privilege, are responsible communication on matters of public interest.” The couple brought an anti-SLAPP motion.

The couple succeeded. Referencing s 137.1 of CJA, i.e. the anti-SLAPP section, the motion judge rejected Benchwood's claim for three reasons.

First, the couple's comments related to a matter of public interest because Benchwood offers services to the public and customer reviews are “widely utilized.” Second, because the couple's defence might succeed, Benchwood's claim had to be dismissed. Finally, she found that Benchwood had failed to establish that any harm done was serious because there were “other factors that may have had an effect on [Benchwood’s] reputation.”

Benchwood appealed, and the Court of Appeal sided with the builders.

The court conducted an analysis of s 137.1.

First, it lamented that the section is "poorly drafted and confusing" and "in desperate need of a makeover, if not repeal and replacement." The court then considered "consider the text of the legislation, the context within which it operates along with the specific case context, and the particular purpose for the provisions at issue."

On the text of the section, the court noted that "public interest" is not defined.

Regarding its purpose, it's established that it is intended to prevent a plaintiff from "silencing a defendant by pursuing meritless litigation that served to intimidate and undermine public expression."

As for context, the section "presupposes active litigation of possibly questionable value." The specific context was a commercial dispute in which one party might have defamed the other.

The court then commented on the "values underlying defamation as a cause of action, on the one hand, and the value of free expression, on the other." It cited an authority on the purpose of the law: it is to protect reputation and to safeguard emotional security and dignity. As for the purpose of protecting free speech, the court cited the SCC's understanding: it is to "ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream."

On this tension, the SCC has observed that the Charter is about ‘expressive activity’ but it also protects the dignity and worth of individuals, whose reputation may be their most valued asset."

The court then turned to the appeal. Did the couple's speech engage a matter of public interest? If it did, then Benchwood had to show that its action against the homeowners had merit and that they had no valid defence to the action.

The court held that some cases have placed "too high a burden on the defamed plaintiff." Where a defence might be valid, the judge must weigh public interests: the interest in protecting reputation/remedying harm versus the interest in protecting the (possibly defamatory) speech.

The consensus view of Superior Court judges is that online reviews are matters of public interest. But sometimes they are not. So, were the couple's? Did they engage a broad societal concern? No, they did not.

"Consequently, although some members of the public might find [the dispute] interesting, it is not a matter of public interest under s 137.1."

The second reason was that the motion judge erred in not moving "smartly" to the weighing exercise required by the statute.

The third was the judge's approach to said weighing exercise, which should focus on "what is really going on"; "it is necessary to assess the quality of the expression, including the motivation behind it, the medium through which it was expressed, and its subject matter."

The court reviewed factors identified in the case law in determining whether an expression approaches the fundamental values of the Charter:

• Personal attacks and defamatory statements are only remotely related to these core values. Consequently, there is less public interest in protecting these types of expressions.
• Statements that are exaggerated or inaccurate, or contain deliberate misrepresentations also reduce the public interest protection afforded to those expressions.
• Expressions made for the purpose of interfering with another’s ability to express their views may also attract less public interest protection.
• The motivation behind the subject expressions can lower the public interest in protecting the expression.
• The presence of “classic SLAPP” indicia, which include: whether the plaintiff has a history of using litigation or the threat of litigation to silence critics; a financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose animating the action; and minimal or nominal damages suffered by the plaintiff.

The court argued:

"The interest in protecting the expression is reduced by personal attacks and defamatory statements. Statements that are exaggerated, inaccurate or contain deliberate misrepresentations also reduce the public interest in protecting them. Perhaps the Homeowners’ dominant motive was to warn other consumers. But that was not their only motive."

The malice of the couple's posts meant that the matter was a private dispute, and 

"[t]he interest in protecting the expression is reduced by personal attacks and defamatory statements. Statements that are exaggerated, inaccurate or contain deliberate misrepresentations also reduce the public interest in protecting them."

If you've been accused of posting a defamatory review online and the action has been initiated at Small Claims Court, you won't be able to bring an anti-SLAAP motion. You'll have to seek a change in venue if you wish to do so. The purpose of this article is to show that an online review isn't always considered fair comment engaging the public interest. In fact, a review rarely meets that threshold.

As ever, the best defence to a defamation claim is justification (i.e., the truth). Stick to facts you have personal knowledge of. If you're sharing an opinion, be sure it's reasonable and based on a fact. And it's probably best to avoid posting something in the heat of the moment.

If you've been accused of making defamatory statements, or you believe someone has made defamatory statements against you or your business, a paralegal might be able to help. Get in touch for your free consultation.