Howard Levitt: A Twitter smear campaign against your employer may be cathartic — but it could have serious legal consequences

The fact a tweet may technically be ‘public expression’ doesn’t entitle you to protection from a lawsuit on that basis alone

An individual’s reputation is not to be treated as regrettable but unavoidable roadkill on the highway of public controversy.” – Simpson v Mair, Supreme Court of Canada, Justice Ian Binnie

In a world where the court of public opinion often furnishes much harsher sentences than the courts are even capable of, people are increasingly looking to social media to air their grievances and vindicate their rights before a jury of their peers. The rise of “cancel culture” demonstrates that putting someone in the virtual stocks via a Twitter smear campaign can be a low-effort, low-cost source of catharsis. But it opens one up to serious legal consequences.

Too often I see embittered employees turn to their social media accounts after a termination (or in some unfortunate cases, even before that) in the pursuit of the superficial, albeit emotionally satisfying, judgments of their followers. This can feel like due process… until one finds oneself facing a cease and desist letter, or worse, a defamation lawsuit.

There are few easy ways out of these situations. One would be to rely on Canada’s “anti-SLAPP” laws. SLAPP stands for Strategic Lawsuit Against Public Participation. These laws provide a procedure by which you can have a defamation lawsuit dismissed quickly, but there is a catch. They only apply if the purpose of the lawsuit is to silence public expression. Not every unwelcome lawsuit will be a SLAPP. The fact that a tweet may technically be “public expression” does not entitle you to protection from a lawsuit on that basis alone.

To illustrate: an angry employee goes on Twitter and accuses their former employer of discrimination. The tweet makes its way across various social media platforms until dozens, hundreds, and then thousands of people have been engaged. The employer sues for defamation. In the right circumstances, the employee could have this lawsuit dismissed quickly. But in the wrong circumstances, that employee may find themselves unable to rely on anti-SLAPP laws, and will have to defend themselves against more expensive, long-term litigation.

An example of a “wrong” circumstance might be if the tweet had a devastating effect on the employer’s reputation. Perhaps the tweet causes them to lose multiple clients. Canada’s highest court has made it very clear that when they evaluate harm, they consider harm to a person’s reputation. To the courts, professional reputation matters. Your reputation can be the very cornerstone of your entire professional life, or, in the words of U.S. Supreme Court Justice Benjamin Cardozo, “Reputation is a plant of tender growth (whose) blossom, once lost, is not easily restored.”

Employees especially need to be aware of this. Regardless of their intentions, publicly disparaging your employer will almost always put your own professional reputation (and your employment itself) into play. The social value that we place on open debate is high indeed. But the courts, at least, have not lost sight of the fact that one person’s valuable debate can be another person’s loss of livelihood. Even an email sent to a private group chat can cause massive reputational harm, and the law takes this into account. Everyone presumptively deserves to have their day in the court of law, not only the court of public opinion.

Anti-SLAPP laws are relatively new to Canada, and only time will tell how they will develop within the prevailing political climate. Given the immense changes that our nation is experiencing (and will no doubt continue to experience), freewheeling debate has never been more important to democracy. But by the same token, the dignity of individual Canadians must be safeguarded. At the very core, our free-speech laws is a tightrope walking exercise, and a controversial one at that. In the end, the question will really come down to how society chooses to separate the valid from the vindictive, and the principled from the petty.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.