New torts are vanishingly rare: it can take decades for Canadian courts to recognize new causes of action. But the internet is a potential breeding ground for tortious activity, and our courts may soon recognize new torts—if they haven’t already—or expand existing torts such as defamation to capture online activity.
Online ratings may be the among the first areas of focus. A low rating can dissuade potential customers from purchasing a video game, visiting a restaurant, or watching a movie. In the age of endless choices for products and services, a higher or lower rating can make the difference between one business’ success and another’s ruin.
“Review bombing” and “trolling”
In 2020 the Court of Queen’s Bench for Saskatchewan released its decision in Houseman v Harrison, 2020 SKQB 36. The plaintiff, a dentist, sued two former employees for defamation after they authored nine seemingly legitimate reviews on two different review sites. The Court ultimately found the reviews were fabricated and deliberately authored out of spite and personal animosity in a campaign to harm the plaintiff’s reputation and business. The Court awarded the plaintiff general, special, aggravated, and punitive damages totalling CA$240,000.
Houseman may be the first instance of a Canadian court recognizing and finding liability for the 21st century phenomenon known as “review bombing”, a form of internet trolling whereby internet users individually or collectively author (often anonymously) defamatory reviews of a product or service.
Trolling (verb) is when internet “trolls” (noun) act or speak in a deliberately provocative or inflammatory manner to generate an emotional response from others. The term was borrowed from its use in fishing, meaning to lure or bait. Trolling activities are unfortunately expansive, and include posting derogatory comments to a publicly shared video or photo, constantly harassing someone on social media, repeatedly hounding a fellow player in a video game, or knowingly spreading false information on virtual communities. A troll may be motivated by revenge, hate, a capricious need to ruin another person’s reputation for their own enjoyment, or a simple desire to bother someone incessantly out of sheer boredom.
When trolling is done as a coordinated campaign involving many individuals (or one individual or few individuals with multiple accounts), the consequences on the targeted individual or business can be devastating. This occurs frequently in the context of newly released products or services in a phenomenon known as “review bombing”. As the name suggests, it involves hundreds, even thousands, of individuals collectively “bombing” a product or service’s page on a review platform such as Rotten Tomatoes (for movies), Steam (for video games), or various map apps (for local businesses) with negative reviews. Generally, such reviews neither speak to the content of the product or service itself, nor are written by individuals who have actually used or experienced the product or service. At its core, review bombing is a collection of defamatory expressions made on the internet, usually in the form of written reviews.
Defamatory internet reviews
Defamation requires an expression to “tend to lower the plaintiff’s reputation in the eyes of a reasonable person.” While a single negative false review may only minimally impact the overall rating of a product or service, review bombing can cause a rating to decline substantially. For example, when the movie Captain Marvel was review bombed on Rotten Tomatoes, its audience score plummeted to 33% from over 58,000 “reviewers” the morning of its release, even though it received an 81% score from verified critics. Similarly, the movie Star Wars: The Last Jedi was also review bombed on Rotten Tomatoes for its inclusion of a more diverse cast. The video game The Last of Us Part II was reviewed bombed on Metacritic due to a perception that it addressed social justice themes, and the mobile video game Genshin Impact was reviewed bombed on for an update that introduced more premium content which required additional payment to access.
In Houseman, the Court addressed the impact of defamatory internet reviews, noting that internet communications are “instantaneous, seamless, interactive, blunt, borderless and far-reaching.” Further, the “anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed…”. Indeed, for defamatory comments made on the internet, “the truth rarely catches up with a lie”. The impugned reviews claimed the plaintiff acted unprofessionally or was professionally incompetent during several appointments with the reviewers. The plaintiff proved that those appointments never happened and the Court found the reviews to be false.
Notably, the Court referred to Sagman v Bell Telephone Co of Canada, 2014 ONSC 4183, observing that in that case defamatory reviews were posted on two different review platforms, constituting “double defamation” and a larger damages award. The Court in Houseman did not apply this reasoning in its decision, but the door remains open for future review bombing cases.
While the Court did not explicitly use the term “review bombing”, itcited the Uppal v Diler case from Ontario which saw the Court there describe comparable behaviour as “a deliberate campaign…intended to harass…and smear”. We therefore suggest that Houseman is one of the first reported Canadian decisions involving review bombing. The Court opted to fit the claims within defamation law, but future courts may chart a different path toward a new intentional tort. In any case, in an era of relatively underregulated online reviews and misinformation masquerading as “opinions”, Houseman is unlikely to be the last review bombing case, and may serve as a touchstone for future decisions.
If you have any questions about this insight, please reach out to the authors, Josh Dial and Changhai Zhu. Josh and Changhai wish to acknowledge their co-author, Jack Yuan, who is a summer student in the Calgary office.
 Bent v Platnick, 2020 SCC 23 at para 92.
 Quoting Barrick Gold Corp v Lopehandia, 2004 CanLII 12938 (ONCA) at para 31.
 Ibid at para 32, quoting “Silencing John Doe: Defamation and Discourse in Cyberspace” (2000), 49 Duke LJ 855, at 862–65.
 Houseman at para 21.
 Ibid at para 37 citing Sagman v Bell Telephone Co of Canada, 2014 ONSC 4183.
 Uppal v Diler, 2012 CanLII 98399 (ONSC Small Claims Court).
 Ibid at para 46, echoing Houseman at para 34.