Could the Saskatoon security guard in FreshCo arrest video sue for defamation?

Could guard in FreshCo arrest video sue? WATCH: In the wake of his legal exoneration, experts weigh in on the question of whether the guard captured in a viral arrest video can sue.

The trial of a woman whose arrest was recorded and went viral has finished, but questions remain about whether the security guard shown in the video could make a case for defamation.

Security guard Cameron McMillan attempted to detain Annette Custer outside a Saskatoon FreshCo on April 14, 2021. A video of her arrest was shared widely online and sparked thousands of comments, as well as criticism from leaders including including Saskatoon mayor Charlie Clark and Marc Millar, who was Canada's Indigenous Services minister at the time.

According to court documents, McMillan was called racist, criminal and violent — with some even claiming he committed sexual assault. McMillan was fired from his job and his security license was revoked.

Days after the arrest, a press conference was held by the Federation of Sovereign Indigenous Nations (FSIN). Chief Bobby Cameron said McMillan treated Custer inhumanely and pushed for criminal charges to be laid

In the end, a judge found McMillan acted within his rights and found Custer guilty of assault and theft.

Litigation lawyer Ryder Gilliland has been practicing law for more than 20 years, with a focus on media and privacy cases. He says McMillan has a case for defamation, but it likely wouldn’t stand up in court.

“The threshold for suing for defamation is very low because all you have to show is that you've been defamed and that the defamation has gone out to third parties,” Gilliland tells CTV News.

“For example, in this case, clearly he has been defamed publicly.”

While McMillan may have a case for defamation, Gilliland says the defence’s case could be stronger.

“A lot of the heavy lifting in defamation cases happens with the defence,” Gilliland says.

“If I were advising the security guard about the potential for suing defamation, I would alert him that there's a strong possibility that much of the commentary is going to be protected by fair comment.”

Fair comment is a defence that protects the right to express opinions on matters of public interest.

Brett Caraway, professor of media economics at the University of Toronto, says the social media “ecosystem moves really fast.”

“It's hard to slow down for a second and have a more introspective conversation around what's actually going on,” Caraway says.

“And of course, what we’ve seen here is that the court has a very different interpretation than what the court of public opinion had.”

Caraway says he would like to see more “good-faith dialogue” on social media, rather than impulsive comments.

“The thing about online social media is that they hone their algorithms to elevate or amplify the content most likely to get shared, the most likely to generate as much user-engagement as possible — which tends to be content that provokes the strongest reaction in people. And that's very different than trying to bring people into what I would call a ‘good-faith dialogue,’” Caraway says.

Custer’s lawyer, Chris Murphy, says it was appropriate for local leaders to speak out before the verdict.

“They shouldn't be muzzled and wait for a decision that may never come because charges that are initially laid are sometimes later stayed,” Murphy said, following Custer’s sentencing on Wednesday.

“If you wait for a decision of the court before you pass judgment on behaviours of people in society — you'll be waiting forever.”

Custer received a six-month conditional discharge for assault and theft.