Public Accountability and Online Pile-Ons

A pile-on feels like collective action, but the law treats it as many individual acts. Each share, comment and repost is judged on its own, and "everyone else was saying it" is not a defence.

Accountability and exposure are different things

Accountability connects specific conduct to a specific consequence through a process that can hear both sides. A complaint to a regulator, a workplace investigation or a published news story with a right of reply are all accountability mechanisms.

Exposure is broadcasting someone's name and alleged conduct to as many people as possible. It can sometimes force an institution to act. It also skips every safeguard that makes accountability fair: verification, a chance to respond and a proportionate outcome.

If your goal is real accountability, the first question is which body has the power to act, and whether you have gone to it.

Your legal exposure as a participant

Repeating a claim is publishing it. In defamation law, everyone who repeats a defamatory statement is treated as publishing it again. You do not need to have written the original post. Reposting with "Is this true?" or "Wow" can still count.

You can be responsible for your comment section. In Pritchard v. Van Nes, 2016 BCSC 686, a woman was held liable for defamatory comments that friends added under her Facebook post. On those facts, she knew about the comments, controlled her page, and failed to remove them within a reasonable time. Liability is not automatic for every third-party comment. If a thread under your post turns into a pile-on, remove defamatory or abusive content.

Privacy torts apply too. Ontario recognizes liability for publicizing private facts and for placing someone in a false light. Sharing a person's home address, workplace, health details or family members to "help people hold them accountable" can create liability even if every detail is true.

Hyperlinks are safer than reposts. The Supreme Court held in Crookes v. Newton, 2011 SCC 47, that a bare hyperlink, without more, is not publication of what it links to. That does not shield accompanying words that repeat the allegation or themselves convey defamatory meaning.

When the target is your employee

This is where pile-ons often do the most lasting damage, and where employers make the most avoidable mistakes.

1. Do not decide in the first 24 hours. Firing someone because a post went viral, before you know the facts, invites a wrongful dismissal claim. Canadian courts assess cause by asking whether the misconduct, in context, justifies dismissal (McKinley v. BC Tel, 2001 SCC 38). Online outrage is not context.
2. Separate the facts from the volume. Identify the original source, what the employee actually did and whether it connects to their work.
3. Investigate, then decide. Give the employee a fair chance to respond. Off-duty conduct can justify discipline, but usually only where it harms the employer's reputation or business, or makes the employee unable to do their job.
4. Remember your safety duties. If the public is harassing your employee through work email, phone lines or social channels, that may be workplace harassment under the Ontario OHSA. You have obligations to that worker too.
5. Say less publicly. A short statement that you are aware and reviewing the matter is usually enough. Detailed public comment about an employee can create privacy and defamation exposure for the organization.

When the target is your organization

Pile-ons against organizations usually start with a real grievance. Find it quickly. Respond to the substance once, specifically and in plain language. Avoid deleting critical comments unless they are threatening or abusive, because deletion often becomes the next story.

A five-question check before you join in

1. Do I know this is true from a reliable source, or just from how many people are saying it?
2. Has the person had any chance to respond?
3. Does sharing this go to the body that can actually act on it?
4. Am I adding new facts, or just more volume?
5. Would I be comfortable defending this post in court, by name?

If you cannot answer yes to the first and last questions, do not share.

About Juliana Saxberg

Juliana Saxberg is an Ottawa lawyer, founder of Lex Artia Professional Corporation, and legal-tech commentator. Read her author profile →