Once a means of linking various American military, industrial, and academic research partners, the Internet has grown to affect virtually every aspect of modern life. While the growth of the Internet has proven beneficial in terms of improving communications and disseminating information world-wide, it has raised a number of legal concerns. Online defamation has, in fact, become one of the hottest topics in the legal profession. As noted by George Takach, "the Internet promises to be the supreme mechanism for perpetrating libelous statements."(2)
Defamation law deals with two competing interests; first, the right to protect one's reputation and secondly, freedom of expression. As this web site will demonstrate, the law does not presently achieve an equilibrium of the two as priority leans towards the protection of reputation. While the Canadian Charter of Rights and Freedoms has recently emerged to provide a constitutional dimension to freedom of expression, the fundamental values which underpin defamation have longstanding historical roots.
Defamation has been divided into two distinct classifications: libel and slander. Although libel is considered a violation of the Canadian Criminal Code, this section is rarely used. As a result this paperís analysis will be limited to libel and slander in civil contexts.
The proliferation of the Internet has exposed many glaring shortcomings in current Canadian defamation laws which arguably are not equipped to address jurisdictional issues created by this new medium. One of the key questions raised is whether traditional civil and criminal laws should apply to Internet-related defamation cases, or whether "Cyberlibel" specific legislation should be developed. This web site shall explore these and other issues by first examining the unique characteristics of the Internet. Second, it will present a historical analysis of the roots of the tort of defamation, followed by an explanation of the elements and the defences available. The third section will examine the liability for both the individual and the Internet Service Provider(ISP). Fourth, recommendations will be provided regarding how the individual and the ISP can avoid such liablitiy in Canada, based on an analysis of analogous real space examples where liability in defamation has been found and foreign caselaw on the topic. Fifth, the paper will then conclude with suggestions as to how Canadian courts and the international community can regulate defamatory materials.
Before conducting an analysis of the Internet's impact on the laws of defamation, one must note the features of the Internet which distinguish it from other mediums of communication. As so with countless areas of law, these characteristics have led to a re examination of existing Canadian defamation law. A question that commonly arises is whether the laws should be applied in their current form or be modified for Cyberspace. As noted by Canadian "Cyberlibel" lawyer David Potts, there are many important new considerations.
The first Internet characteristic of importance is its truly global nature. Presently, over one hundred and twenty-five countries are linked to the Internet. Consequently, jurisdictional concerns over publication issues immediately surface. Theoretically - as we shall later explore through the case law - when a third party accesses a defamatory posting on the Internet, the requisite element for a libel action of publication has occurred. What makes this finding more difficult, however, is the fact that defamation laws not only vary between nations, but among provinces and states. As a result, the lawyer must further examine the jurisdiction under which their client should sue and attempt to determine which would render the most favourable decision.(3)
This dilemma of whose law should apply plagues most Internet litigation in general. Should it be U.S. First Amendment protection; should the Common Law of the Commonwealth or the Civil Law apply? And following such a determination, can the judgment even be enforced? Despite existing legislation allowing reciprocal enforcement of civil judgments, due to the First Amendment protection of freedom of expression, U.S. courts have proven unwilling to enforce defamation judgments from other jurisdictions.(4) Also, the quantum of damages is of central importance in any defamation suit as theoretically, Internet publication reaches millions worldwide.
A second key characteristic of the Internet is its interactive nature.(5) While this trait has lead to many positive societal developments, it has also contributed to a substantial increase in defamation opportunities. This trend is largely driven by a false sense of communicational freedom that is created by the ease with which users can access bulletin boards and Usenet's.The absence of an effective, regulating body with legally enforceable powers, as well as constantly diminishing connectivity and web site establishment costs have further encouraged this problem. As a result, accessibility is a third key characteristic of the Internet. The nature of the Internet's accessibility distinguishes it from traditional print or broadcast media. As noted by John Manley at the Law Tech Plus Conference, the number of Internet users in Canada is second amongst G7 Nations. By March 1998, Canada had 16,500 schools and 3,400 libraries with Internet connections. There will be a projected 10,000 Community Access centres across Canada by March 2001.(6) Anybody can be a publisher on the Internet and in turn can be sued as a publisher. Libel has traditionally been restricted to broadcasters and media with the ability to inflict substantial damage; however, as stated by John Zittrain, the Internet has opened up the world of defamation to the "little guy,"(7) who can create a web site or send an electronic message in Canada which could reach thousands of people with similar equipment in other jurisdictions where the laws and defences for defamation are radically different within minutes.
The Internet presents a relative state of anonymity. Many Internet users operate under pseudonyms when sending e-mail or posting messages on bulletin boards. This feature, when coupled with Internet access in the privacy of one's own home or office and the interactive, responsive nature of communications, has resulted in a loss of inhibition.(8) This resulting sense of personal security has resulted in businesses becoming targets of damaging defamatory attacks in on-line magazines, competitors' web sites and USENET newsgroup postings.
Lastly, Internet users cannot be classified as a homogeneous group. The potential liability of those who give access to read, and write to, the Internet such as the ISP's must be separated from the writers themselves.(9)
1. I. Trotter Hardy, Professor of Law College of William and Mary, Marshall-Wythte School of Law, Nat'l L. J. (July 18, 1994).
2. George Takach, Computer Law, (Toronto: Irwin Law, 1998) at 388.
3. David Potts and Sally Harris, "Defamation and the Internet," Paper prepared for a conference entitled, "Legal Issues on the Internet," Toronto, May 1996, available at http://www.cyberlibel.com/defnet.html
4. As in the case of Bachchan v. India Abroad Publications 585 N.Y.S. 2d 661(Sup. 1992), A libel claim in the United Kingdom was brought against a New York Plaintiff; however, The New York court declined to enforce the judgement in New York on the basis that the lack of a U.S. First Amendment free speech law in the United Kingdom made it contrary to public policy to enforce the judgement in the United States.
5. Potts and Harris, supra note 3. http://www.cyberlibel.com/defnet.html
6. John Manley, Address given at "Law Techplus : Power your Practice," Ottawa, Ontario, February 12, 1999 [unpublished].[hereinafter Manley]
7. John Zittrian, "Law in a Connected World", Address given at "Law Techplus : Power your Practice," Ottawa, Ontario, February 11, 1999).[unplublished]. [hereinafter Zittrain]
8. Potts and Harris, supra note 3. http://www.cyberlibel.com/defnet.html
9. Lilian Edwards, "Law and the Internet - Regulating Cyberspace, Defamation and the Internet: Name Calling in Cyberspace," 1997, available at http://www.law.ed.ac.uk/c10_main.htm .