Libel and the Internet

By Julian Porter

While the law is clear on what constitutes libel (defamatory comments in writing) and slander (something orally), the public and the profession seem confused on whether these same principles also apply to a website, social networking sites like Facebook or blog information. Julian Porter, one of the country’s leading experts in defamation, recently wrote the following commentary for the Ontario Bar Association that helps clarifies the situation.

People who communicate on the Internet generally believe that whatever they say is complete freedom of speech and that the law has no business interfering with it. They are quite shocked when they are advised that this is not so. They are also shocked when I make it quite clear to them that the American law of libel has absolutely nothing to do with the law of libel in Canada – nothing. Let me repeat this – nothing!

In Canada the foremost case dealing with the Internet is Barrick Gold Corporation v. Lopehandia et al 2004 CanLII 12938 (ON C.A.) – Justice David Doherty dissenting on the issue of damages.

Justice Robert Blair found that the Internet was a worldwide publication. Specifically it was his view that:

[31] … the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and farreaching.

It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: see Vaquero Energy Ltd. v.Weir, [2004] A.J.No. 84 (Alta. Q.B.) at para. 17.

Justice Blair cites an author with approval:

[32] …Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation.Once a message enters cyberspace, millions of people worldwide can gain access to it.

Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie.” The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse [emphasis added].

[33] These characteristics differentiate the publication of defamatory material on the Internet from publication in the more traditional forms of media, in my opinion.

[38] The notion that Mr. Lopehandia’s Internet dialogue style – a style that may not be taken seriously in a traditional medium such as a newspaper – may undermine the credibility of his message has some appeal to these of us who are accustomed to the tradtional media.However, as I have noted, the Internet is not a traditional medium of communication. Its nature and manner of presentation are evolving, and there is nothing in the record to indicate that people did not take Mr. Lopehandia’s postings seriously. In fact, the uncontradicted evidence is to the contrary.

The Court ordered very large damages for Internet postings (a considerable number of extreme postings). General damages of $75,000 and $50,000 in punitive damages.

In Dow Jones & Company Inc. v. Gutnick [2002] HCA 56 (December 10th, 2002) Justice Michael Kirby decided that the law applicable to libel is the law in the jurisdiction where it is taken down from the Internet as opposed to the law that exists where the Internet message originates. This means you can shop for jurisdictions.

Essentially in Canada an Internet Service Provider (ISP) most probably will not be held responsible for the publication of a libellous message unless it can be shown that there was knowledge of it and its libellous nature when it initially appeared. However, if an ISP is served with a Libel Notice concerning a specific publication it then has knowledge of the libel and should remove the offending publication unless it wishes to fight a libel case. Most probably an ISP will take it down in the case of a clear libel.

The problem with the Internet is: Does the individual defendant have any real money? Chat rooms are full of penniless blowhards. Website owners, if they are news corporations who conduct chat rooms where readers post comments, may be in a more grey area but the courts have not expressed an opinion on this. Canadian ISPs will take down the libel after a proper notice of libel is served if the libel is clear and likely false. Once that occurs, a Court is most unlikely to find the ISP responsible.

This article originally appeared in the March 2008 edition of Briefly Speaking, the official magazine of the Ontario Bar Association.