You wrote what? Defamation in the internet age

November 8th, 2012 by

The internet has been described by some as a forum for righteous indignation. Many internet operators monetize their websites by operating rating sites, blogs which allow comments to be left or discussion forums. The ease in which comments may be made raises liability issues for both the writer and the websites on which such comments are made.

Defamation generally describes a communication, whether written or oral, that harms another’s reputation. A defamation of character claim generally exists where: (i) a false statement was made; (ii) the statement caused harm and; (iii) the statement was made without adequate research into the truthfulness of the statement. Various defenses do exist which are not the topic of this blog post.

Even prior to the popularity of social media sites, the Ontario Court of Appeal in Barrick Gold Corporation v. Lopehandia, recognized that defamation on the internet was distinct from traditional mediums. The speed and reach of the internet made any comments defamatory in character more easily distributed and believed.

For the purposes of this blog, we are going to concentrate on two particular issues specific to defamation as it occurs on the internet:

The risk of defending an action in another jurisdiction.

If an Ontario resident reads a defamatory comment about themselves made by someone in Florida, where should they sue? Since 2010, American law states that defamation of character judgments in foreign jurisdictions will not be recognized in American courts if they conflict with the First Amendment (freedom of speech rights). Thus, the Ontario resident would have to travel to Florida to begin an action, lest they sue in Ontario and try unsuccessfully to enforce a foreign judgment in Florida where a First Amendment defense is likely to be raised.

In Ontario, a case such as Bangoura v. Washington Post reinforces the traditional common law approach of courts assuming jurisdiction where there is a real and substantial connection with the province. For example, a defamatory comment made about an Ontario resident by a blogger in Nevada where only 2 of 2,500 readers reside in Ontario may not constitute enough of a connection to commence an action in Ontario.

Publishers Liability

Under “traditional” media, a publisher who publishes a defamatory statement will be held to be equally liable for the statements made by the author of the work as the author herself. People who distribute publications (bookstores and libraries) are generally not held to the same degree of liability. The rationale behind this distinction is that publishers have the opportunity to review the content and can remove defamatory material while distributors may not have the same opportunity. However, do we treat websites as publishers or distributors?

Canadian case law on this matter is sparse at the time of the writing of this blog. The Supreme Court of Canada in Crookes v. Newton ruled that merely hyperlinking to defamatory material does not give rise to a defamation of character claim. Hyperlinking, as a passive reference to something that exists, was differentiated from repeating a defamatory comment. Where the website is actively repeating defamatory material, the website owner would be seen as closer to a publisher than a distributor and bear the same liability as the provider of such content. As such, the Supreme Court of Canada made the distinction between permitted conduct of publishing a hyperlink versus presenting the hyperlink in a manner which repeats the defamatory conduct.

A conversation with our American colleagues indicates that American law takes a similar approach.  As we have been informed, American laws will not recognize a defamation of character claim for passively hosted third party content; but the defense is eroded if the website owner takes a more active approach to amending, editing or removing content. In other words, the more the website owner acts like a publisher, the greater its liability.

This has lead to the strange result that doing nothing as a website owner is better than doing something when it comes to defending against defamation claims.

Defamation of character is generally a complex field of law. When coupled with the online component, it becomes even more complex. As such, qualified legal advice should be sought if you are operating a website containing opinionated content.

If you have any questions regarding online defamation, please do not hesitate to contact the Intellectual Property or Business and Corporate Services department at Devry Smith Frank LLP. We have been assisting our clients grow and prosper since 1964.

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