See, who said the NHL trade deadline was going to be a snoozefest? Of course, that’s not for any reason to do with the actual trades that took place that day, or any incident on a rink—the biggest news, instead, have come on a playing field that involves much more legalese.
As is fairly rote in today’s all-day broadcasts for the trade deadline, TSN’s ticker featured a feed of tweets written by viewers (Maclean’s is owned by Rogers, which also owns Sportsnet). Most of the tweets were pithy, giving their thoughts on trades or their team’s chances. But one in particular stood out—by Anthony Adragna, @AdragnaA21. In it, he made defamatory remarks about Leafs Dion Phaneuf and Joffrey Lupul, as well as Phaneuf’s wife, actress Elisha Cuthbert. It was lewd, crude, false, and certainly had no place on a national broadcast. TSN released a statement online and on air to apologize for the “false, inappropriate” tweet.
But Lupul, Phaneuf and Cuthbert didn’t take the mistake sitting down. Late on Tuesday, lawyers at Gall Legge Grant & Munroe LLP announced that they had sent a letter “demanding that TSN issue a formal apology and pay a significant amount of damages to each of our clients.” They sent a “similar letter” to Adragna.
“If TSN and Mr. Adragna do not immediately comply with the demands set out in our letters,” the statement reads, “we have instructions from our clients to immediately commence a lawsuit against them.”
The instinct, immediately, is to feel sympathy for Adragna, the writer of the offending tweet. After all, this was a random Toronto fan making a remark to his smattering of followers on Twitter, who some might say is only being named to the suit because of TSN’s amplification of his tweet. He released the following statement Tuesday night:
— Anthony Adragna (@AdragnaA21) March 3, 2015
Problem is, that’s not quite how libel law works, says Brian Rogers, a Toronto media lawyer.
“[Adragna] is right in this sense: just because you post something on Twitter or a website, the intended audience may in fact be fairly small. You recognize that it might get retweeted, republished, and broaden its reach, but I don’t think too many of us think that our tweets are going to end up on a national broadcast,” said Rogers. “But what counts is that they published it, about the person that they’re defaming—and that’s all the law requires. Then you’re on the hook.”
Litigation of this sort remains quite a new frontier; the law that governs social media libel, Rogers said, is the same as was first invented to staunch old-school bulletin-board gossip. “We’ve got an old law that’s developing that needs modernization,” he said. “There’s nothing yet explicit in our libel statutes that applies to things like tweets or broadcasts online. So we’ve got a quite a bit that needs to be straightened out by the courts.”
There have been recent developments; only recently did the courts make a ruling about whether defamation includes the act of hyperlinking to the offending material. Just last week, the Ontario Superior court heard the case of Baglow v. Smith, which centred around a claim that the moderator of a message board who failed to remove a blogger’s potentially defamatory content is liable as a publisher for defamation purposes. “The court found the blogosphere was a wild west of opinion in which words and rhetoric can be used in very strong language and must be recognized,” said Rogers. “The judge actually had an expert witness come in and testify about all this stuff, which was quite remarkable.” (The postings were protected under fair comment.)
“It’s just changed the medium, but the same impact—maybe much greater impact—is still there, where people can read what you put up and form an opinion that may lower the reputation of the person that it’s about.”
Rogers cites a recent case that also ventured in the realm of sports fervour: in 2013, former Leafs general manager Brian Burke launched a defamation lawsuit against bloggers who made claims about his own infidelity. “A tweet can resound around the world if enough people pass it on.”
That’s the cognitive dissonance of the new frontiers of social media: we claim pedestals behind anonymity, behind false names or egg images, and believe that’s enough to protect us as we launch angry attacks (a rather frequent kind of tweet, in the spittle-filled world of sports Twitter). Others still believe in including the pithy sentence “Retweets or links do not mean endorsements” in their Twitter bios, a false-flag that is meaningless in a court of law. That flawed belief that social media is a haven for free speech, then, can only come up hard against the harsh reality of defamation law.
“Be conscious of what you tweet,” Rogers offers in the way of advice. “It’s one thing to say the Leafs are lousy; it’s another thing to single out a couple of individuals and make allegations about their private life.”