#Illegal #Infringement : Defamation & Social Media

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By Richard Stobbe

Can a hashtag constitute defamation?

In an Ontario case involving a music collaboration gone wrong, the answer apparently is yes. The dispute involved Mr. Johnson, who was allegedly a songwriter and music producer. Ms. Rakhmanova was also a song writer and signer. The two musicians collaborated on several tracks which were later the subject of a bitter dispute.

According to the judgement, Mr. Johnson released the tracks online, over the objections of Ms. Rakhmanova. At one point, after the songs were mixed and mastered, Ms. Rakhmanova requested that Mr. Johnson sign a recording contract, to memorialize the joint-authorship and ownership of the tracks, including equal publishing credit. Mr. Johnson refused to sign the contract since, according to the judgement, he intended to claim sole ownership over the three songs. Ms. Rakhmanova withdrew her consent to the release of her melodies and vocal tracks.  By then, however, the track had already been released online.  Mr. Johnson failed to properly account for any revenue or royalties, and did not include proper attribution of Ms. Rakhmanova’s contributions: her picture and name were omitted from certain track names.

Ms. Rakhmanova then launched a series of online communications – through emails, Facebook, Twitter, Instagram accounts and SoundCloud posts – demanding removal of the content, and generally calling out Mr. Johnson for his conduct that, in her view, could be described as “…#stealing“, “infringing of my copyright“, “#piracy” “#plagiarism“, “#Infringement“, “#Illegal“, and characterizing Mr. Johnson as akin to “con artists who shamelessly peddle stolen acappellas“…

In Johnson v. Rakhmanova, 2018 ONSC 5258 (CanLII), the Court reviewed a defamation claim by Mr. Johnson, based on comments of this type. Interestingly, the Court flagged the defamatory elements in the various extracts, specifically highlighting certain hashtags such as “#piracy” “#plagiarism”, “#Infringement”, “#Illegal”. While none of the social media posts consisted of only hashtags (there was always more content included in the post), it is worth noting that, for certain posts, the judge highlighted the hashtag alone as constituting the only defamatory element. This suggests that, in the right context, a well-placed hashtag can constitute a defamatory statement.

A finding of defamation raises a presumption that the words complained of were false, that they were communicated with malice and that the plaintiff suffered damage.  That presumption of falsity is rebutted by the defendant proving truth or justification.  In the end, the Court took the view that most of these defamatory statements were accurate and truthful and therefore justified. And therefore not defamatory. The court dismissed Mr. Johnson’s defamation claim in any event, and awarded costs to Ms. Rakhmanova.

 

Calgary -7:00 MST

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