The law of defamation protects your right to your good name. If a person makes a false statement to another to your discredit you can sue for damages. But because of other competing rights in our society, such as free speech and fair comment, there are cases where even the most defamatory statement will not give rise to an award of damages.
No analysis of Canadian law can be concluded without a discussion of the effects of the Charter of Rights and Freedoms. The issues of the Charter, defamation law, and the differences in Canadian and U.S. attitudes were discussed in Coates v. The Citizen(1988), 44 C.C.L.T. 286, 85 N.S.R. (2d) 146 (S.C.T.D.). Mr. Justice Richard held that the Charter applied to defamation law, at least so far as the provincial statutes were involved. The Charter guarantees the rights and freedoms set out in it, "subject only to such reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society" as per Section One. The fundamental issue is whether the guarantee of freedom of expression must result in a change to the strict liability at common law for the publication of defamatory material, or otherwise change the procedural or substantive rules relating to this area of law. The court found that the provincial sections which required the defendants to prove truth, the absence of malice and the presumption of damage were constitutionally valid. In defending the Canadian position the court referred to the following quote from Brown, The Law of Defamation in Canada, Vol. 1(1987)pp.5-6:
Our judiciary places great importance on the protection of reputation. U.S. judicial developments place the Internet user, whether they are online service providers, companies, or organizations hosting bulletin boards on their home pages, in a tedious position. By exercising responsibility and attempting to regulate the nature of the content, they will be labelled a publisher and thus vulnerable to a libel suit. Alternatively, if they take no action, while they may escape liability as a publisher, under Canadian laws they may still incur liability for negligence. However, for the Canadian perspective, we must remember that the reported decisions on the issue of the publisher/distributor characterization are from U.S. and U.K. jurisprudence. For that matter Prodigy is of a lower court on a summary judgment motion and is not binding in Canada. (65) However, with the recent Lunney and Godfrey decisions the Canadian situation is unclear.
Systems operators who take a "willful blindness" approach may get a rude surprise. In Canadian law every sale or delivery of a libelous document is considered a publication. In the example of a printed publication, everyone from the author to the retailing bookstore is potentially liable. If this principle is applied to electronic media, liability would fall on the ISP, every Internet site which receives and passes on the message in a newsgroup, as well as everyone who forwards the message.
The present state of International law places ISP's and bulletin boards in an intolerable position. What can be done by the Canadian ISP to avoid liability? They would be well advised to set up their business in such a way as to minimize the probability of others posting defamatory materials on its site or otherwise making facilities available for the dissemination of defamatory statements. As noted by Potts and Harris, these proposals are offered with the obvious caveat that changes in technology may render them ineffective. Some possible solutions to consider are as follows:
While such steps can be taken there are further uncertainties. Firstly, the imposition by contract of an indemnity against possible legal liability arising out of the acts of any person who subscribes to an ISP can be of limited utility as it will be subject to whatever the law of contract is in that jurisdiction.(67) Given the ruling in Godfrey - where most ISPs in Britain routinely require customers to agree not to make defamatory postings - liability was still found on the failure of the innocent dissemination test. Secondly, Internet users generally prefer to communicate in an uncensored environment. The most popular bulletin boards tend to be those in which subscribers may speak freely. For the online service provider or bulletin board operator editing Internet communication this may not be an easy decision. Most of the profits earned by online service providers and/or bulletin board operators come from advertising and not from subscriptions. Businesses look to invest their advertising dollars in the most highly subscribed bulletin boards and popular sites. Therefore, the decision to edit Internet speech may be financially costly to the business making the decision.(68) As noted by Edwards, in an increasingly competitive market for Internet services, informed consumers may simply turn to another ISP where they can speak freely. Thirdly, and most importantly the measures described above will not provide relief where an ISP is sued in respect to a defamatory statement made by a non subscriber which is then published by the ISP.(69)
Despite these solutions there are also technological complications. While newspapers and television broadcasters are obliged to edit simply due to space limitations, the near infinite storage capacity on the Internet places no such restraints on ISP's. Unlike most articles and television broadcasts, Internet-posted materials are often the result of a spontaneous and unresearched reaction and are not edited. There is little opportunity for editing and review for the ISP because of the quantity and the speed at which information appears on the Internet.(70) As noted by Takach, America Online currently delivers some eleven million messages a day.(71) There is not a technological solution to the problem, despite the existence of filters for banned words it is the content of the message which makes it libelous. The most polite words can be used to make most defamatory remarks.
How should Canadian Courts approach Cyberlibel?
The U.S. and U.K positions would be dangerous to apply to Canada for there would be inherent problems with the innocent dissemination tests application. The most recent Cyberlibel ruling as per Godfrey effectively states that ISP's would be forced to control chat rooms. This has tremendous implications on the freedom of speech of the participants. Yaman Akdeniz, director of Cyber-Rights and Cyber-Liberties (UK), further propagates the idea that ISPs will be forced to act as censors and content regulators, "Every time I would see comments on a Web site that I didn't like, I would [be able to] call my ISP and ask them to remove it -- and they would not be in a position to say no…Instead of having a constructive debate on a news group [the decision] will allow individuals to censor each other using the ISPs. If I am annoyed with you [due to a comment you posted], instead of responding to you I will call the ISP and ask them to remove the content." (72) Akdeniz further stated that the court's decision may point to a larger trend across Europe where a draft of an EU Commission electronic commerce directive suggests that ISPs should be liable for similar kinds of content if they are aware of its existence. (73) David Jones, a professor of computer science at McMaster University and co-founder of the online rights organization Electronic Frontier Canada, said the U.S. model - in which ISPs are not held responsible for online content providing they comply with any court orders to remove illegal posts or help identify the authors of those posts - is a reasonable compromise, "We don't want Internet service providers controlling content. We want them to move bits from point A to point B efficiently." (74)
How should Canadian Courts approach Cyberlibel and the ISP? Prior to the Godfrey decision, George Takach put forth a strong argument whereby the courts should look at the ISP without the use of pre-Internet analogy. The first step in analyzing the intermediaries liability should begin with a detailed assessment of the defendant's role and activities on the Internet as they pertain to the alleged libel. This approach eliminates the need to label the defendant as an ISP, or any other internet analogy. Rather he advocates a functional assessment of the defendant's specific activities by focussing on the degree of knowledge and control. Equal emphasis must then be given to the decision is Hill regarding the importance of reputation and the absolute liability for the content, regardless of knowledge. Justice could then lie somewhere in the middle where the defendant has knowledge of the libel, and the ability to control its further dissemination, liability should follow if within a reasonable period of time after notification, the defendant does not take measures to block access or delete it. He further states that knowledge should not be the sole test for liability, but the second and third prongs on the innocent dissemination test should apply equally in cyberspace. Thus when actual knowledge is absent, the courts should ask whether circumstances existed which ought to have led the defendant to know of the existence of libel or whether the defendant was liable.(75)
Takach further acknowledges the technological difficulties with monitoring the content of the Internet and states that the provider should not have to screen the thousands of messages coming in. Rather the defendant should be expected to monitor a bulletin board which is notorious for its ability to attract defamation. Also the ISP should be expected to monitor messages sent by persons known for abusive behaviour.(76) The issues of privacy and anonymity of users arise which could make this approach difficult to adapt in the United States; however, recent Canadian lawsuits have revealed that anonymous authors can be unmasked and forced to defend themselves in libel suits. In July of 1998, Philip Services Corp. obtained court orders in Ontario requiring domestic and foreign ISP's to divulge the names of computer users who were posting allegedly defamatory messages, using pseudonyms, on a Yahoo! Inc. bulletin board.(77) This has enormous implications for- as we have discussed above - ISP's could eventually protect themselves from liability via a secure registration system for use of their services.
The approach advocated by Takach would seem in line with the Godfrey decision as the judge found the innocent dissemination test was unavailable due to the ISP's previous knowledge of the libelous statements. This would be consistent with existing Canadian law, which is derived from British law and legal traditions.
Even with proposals such as these, the jurisdiction of a government to pass and enforce laws is limited, in terms of physical proximity, to the land mass comprising the particular country, province, state or municipality. As noted by Takach, the general rule is that law is based on geographic communities and will take jurisdiction over actions in its physical jurisdiction.(78) The Internet, which knows no boundaries and has virtual rather than physical communities, represents a fundamental challenge to such a physically based legal system. Most legal commentators accept that in this field, as in other prominent areas of Internet-related debates such as copyright and trademark infringement, obscenity and pornography, single nation legislative strategies seem to be meaningless. It would appear that the next step is the emergence of a multilateral agreement leading to an international convention on, for our purposes, the defence of innocent dissemination which would be of significant utility to both ISPs and individuals.(79) An agreement on the rules of international privacy law in relation to transnational torts would also serve useful to harmonise or clarify Internet related issues of libel. The utility of such innovations is obvious; however, the question then arises whether there is sufficient political imperative to push such an international agreement into existence. As noted by Terry Retter, such discussion and efforts will seriously threaten the Nation State over the next few years.(80) These agreements require the abandonment of conceptions of national sovereignty on matters of acute local interest, but there is also increasing agreement in the computer industry and among politicians and businessmen that over-regulation of the Internet at such an early stage of its commercial development could be harmful. The Internet is a new and valuable source of communication between members of the newly emerging global economy; therefore, society has a deep seeded interest in the continued growth of the Internet as a medium to voice ones ideas and opinions. Furthermore, such external regulation runs counter to the deep-rooted anti-regulatory culture of "traditional" Internet users and given the ever changing technological means to get around the law, may prove to be unenforceable.(81) Many global regulation theories are flawed as such regulations would require all countries to abide by the regulation set by the country with the most stringent regulatory policy.
In attempting to control the Internet, two contrasting approaches arise, the first being regulatory measures controlled by the government as a form of "government censorship" and secondly, regulation by the users or "self regulation" by the ISP's.(82) On February 8, 1996 the Telecommunications Act was passed into American law, including a provision known as the Communications Decency Act(CDA). However, merely one day after President Clinton signed the bill enacting the CDA as law, a lawsuit was filed contesting the constitutionality of the law. The Supreme Court found the CDA was indeed unconstitutional and subsequently President Clinton has decided not to promote legislative measures to regulate the Internet. As noted by Edwards, it appears that following the downfall of the CDA(83), the US government is leaning towards a regime of industry and private sector regulation in relation to harmful content, rather than state regulation which runs the risk of being embarrassingly felled as a breach of constitutional rights and freedoms.(84) A similar development can be perceived in Europe, as per the Green Paper released by the European Commission on illegal and harmful content on the Internet.(85) For the Canadian context, as noted by Michael Geist, a professor of Internet Law at the University of Ottawa, "Legislation is absolutely needed in this country to, at a minimum, establish a level of certainty for all the players. One thing we're increasingly going to find in Canada is that Internet service providers, content providers, and just about everyone involved with the Internet is going to be somewhat unsure as to exactly where their legal liability follows."(86)
Neither human nature nor Internet culture seem alterable by legislative will alone,(87) given numerous arguments and political will against self regulation, it would not be surprising if before long we may indeed see an international solution. While not necessarily dealing with areas such as obscenity and hate speech, at least from an e-commerce perspective dealing with the problem of ISP liability for cyberlibel. As noted by Jonathan Zittrain, for such events to occur we need to carefully look at notions of central governance and determine where it is truly needed, and lawyers must contribute to this process.(88) Conclusion Speech posted on the Internet is arguably a hybrid between letters to the editor and a radio broadcast. Since it does not fit into either category, the courts should recognize it as a distinct type of speech. The special characteristics of cyberspeech necessitate different treatment by the courts. That is, ISP's who censor their newsgroups to protect individuals from obscenities and other unprotected speech should not be punished for failing to remove a defamatory statement. As courts give deference to radio broadcasts so should they to cyberspeech.(89) Given the instantaneous dissemination of ideas, the flip side is that the damage is wide and instantaneous and a recourse should be made available against the ISP who has become the means to spread the defamatory statement.
As an increasing number of cyberlibel claims come to trial in Canada, defamatory speech will become impossible to ignore. In the short term, the older Canadian jurisprudence will prevail until cases and legislation emerge which provide a refined and contemporary application of the existing libel laws to the Internet. But should we even be concerned with the prosecution of cyberlibel? Numerous authors have argued that the defamed should merely get on the web and counter the defamatory speech with their own remarks; this is one the advantages of the Internet. British Columbia Chief Justice Allan McEachern recently stated that the judiciary should turn to the Internet as a tool to counter uninformed criticism about judicial decisions.(90) However, to date liability for defamation has been found in various Internet contexts such as e-mail, Usenet’s and even for ISP’s. Canadian business operating on the Internet must investigate the techniques available to minimize their risk of liability and resulting financial loss. Individuals must become increasingly aware of the substantial financial risk of posting defamatory materials on the web. As the Canadian government is pressing forth to make Canada the most connected nation in the world, the cyberlibel situation is equally auspicious for Canadian legislative intervention and more so for Canadian lawyers.
65. Potts and Harris, supra note 3.http://www.cyberlibel.com/defnet.html
66. Potts and Harris, supra note 3.http://www.cyberlibel.com/defnet.html
67. Edwards, supra note 9. http://www.law.ed.ac.uk/c10_main.htm
68. Potts and Harris, supra note 3.http://www.cyberlibel.com/defnet.html
69. Edwards, supra note 9. http://www.law.ed.ac.uk/c10_main.htm
70. Potts and Harris, supra note 3.http://www.cyberlibel.com/defnet.html
71. Takach, supra note 1 at 405.
72. Glave, supra note 52. http://www.wired.com/news/news/politics/story/18764.html
73. Glave, supra note 52. http://www.wired.com/news/news/politics/story/18764.html
74. Akin, supra note 60. http://www.nationalpost.com/financialpost.asp?s2=canadianbusiness&f=990330/2426263.html
75. Takach, supra note 1 at 405.
76. Takach, supra note 1 at 406.
77. Ladner Downs Free Speech Bulletin. February 1999, available at http://www.ladner downs.com/ladfree.htm
78. Takach, supra note 1 at 406.
79. Rubens, Fraser and Smith "US and international law aspects of the Internet: fitting square pegs into round holes" (1995) 3 IJLIT 117.
80. Terry Retter, "The Technology Landscape for Lawyers and Law Firms,"(Address given at "Law Techplus : Power your Practice," Ottawa, Ontario, February 11, 1999)[unpublished].
81. M Gould "Rules in the Virtual Society" (1996) 10 Int Rev of Law, Computers and Technology 199.
82. S Hanley "International Internet Regulation: A Multinational Approach" (1998) 4 The John Manley Journal of Computer and Information Law, at 1012.
83. Edwards, supra note 9http://www.law.ed.ac.uk/c10_main.htm
84. See http://epic.org/free_speech/censorship/cda.tx
85. See "Clinton backs curbs on porn sites to protect children", Scotsman, 23 July 1997.
86. Akin, supra note 60. http://www.nationalpost.com/financialpost.asp?s2=canadianbusiness&f=990330/2426263.html
87. Illegal and Harmful Content on the Internet, Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, October 1996.
88. Zittrain, supra note 7.
89. Ferosie, supra 37 at 353.
90. British Columbia Chief Justice Allan McEachern , "Electronic Courts: Video Conferencing, Case Management, Electronic Filing - and What Judges are Coming to Expect from Lawyers," (Address given at "Law Techplus : Power your Practice," Ottawa, Ontario, February 12, 1999) [unpublished].