In Barrick Gold Corporation v. Lopehandia (2004), 71 O.R. 3d 416 (Ont. C.A.), Justice Blair endorsed the view that the Internet is "potentially a medium of virtually limitless international defamation". In the past year, Canadian courts were frequently occupied with maintaining the balance between free speech and the protection of reputations online. Five recent cases involving defamation and the Internet are of particular note:
First, in Crookes v. Newton, 2011 SCC 47, Justice Abella writing for a majority of the Supreme Court of Canada, found that posting hyperlinks to defamatory material does not expose the person posting the link to liability for defamation. The Court found that hyperlinks are references and, by themselves, are not "publications" of the content to which they refer. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content should that content be considered to be "published" by the hyperlinker. The majority also recognized the potential application of the defence of innocent dissemination to Internet service providers and other Internet intermediaries who may escape liability by showing that they have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel. The Court also highlighted the difference between knowing involvement with a defamatory publication – which would attract liability - and a mere passive instrumental role. It cited, with apparent approval, the English Court's decision in Bunt v. Tilley not to impose liability on an Internet intermediary. Innocent Internet intermediaries should not be put in the untenable position of having to try to accurately adjudicate the merits of defamation claims relating to third party material or risk exposure to liability in the event they refuse to take action. Hopefully the Court will address this matter definitively at its earliest opportunity.
Publication was also at issue in the second case, Elfarnawani v. International Olympic Committee, 2011 ONSC 6784. In this decision, Kenneth Campbell J., found that defamatory words in a newspaper or broadcast are "deemed to be published" under the Libel and Slander Act. As the Supreme Court of Canada observed in Crookes v. Newton, there is "no such presumption in relation to material published on the Internet." Accordingly, the issue of "publication" is a matter of proof, by evidence, in each individual case and by failing to lead any evidence at all of "publication" in Ontario in this particular action, the plaintiff had failed to prove that the alleged tort of defamation was committed in Ontario.
The third case, Baglow v. Smith, 2011 ONSC 5131 involved defamation claims relating to certain comments posted on a political blog, including the allegation that the plaintiff was "one of the Taliban's more vocal supporters" because the the plaintiff opposed the detention of Omar Khadr, a Canadian citizen, at Guantanamo Bay. In granting summary judgment and dismissing the defamation claims, the Court found that in the context of an online debate in a political blog where insults are regularly traded, greater tolerance will be given when assessing whether or not statements are defamatory.
Fourth, in Warman v. Wilkins-Fournier, 2011 ONSC 3023, Justice Blishen was asked to determine whether the plaintiff was entitled to third party discovery in order to determine the identity of certain anonymous defendants. Applying the test established by the Divisional Court for disclosure from Internet intermediaries, Blishen J. considered:
- whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
- whether the respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
- whether the respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
- whether the public interests favoring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.
In the circumstances of this case, the Court found that the putative defendants had no expectation of anonymity, that the plaintiff had made out a prima facie case and taken all steps necessary in order to try and identify the defendants, including having:
- examined their postings for any verifiable personal information that they might contain;
- cross-referenced their pseudonyms with other online identities using the same names or other names that could be attributed to the same person; and
- using private investigation firms.
Ultimately, the Court ordered that the documents in the hands of the website owners identifying the IP addresses used by the anonymous posters would have to be produced, even if a further motion to compel the Internet service providers was required in order to link the individuals with the IP addresses.
Finally, Nazerali v. Mitchell, 2011 BCSC 1581, Justice Grauer issued an ex parte injunction against Google Inc. and Google Canada Corporation preventing them from returning any search results from a website containing manifestly defamatory material.on the basis that not doing so "might well rob the plaintiff of the value of the relief he has obtained against the other respsondents". In a related decision, Nazerali v. Mitchell, 2012 BCSC 205, Justice Ross dismissed a motion by certain of the defendants, resident in the United States, to strike the claim on the basis that the British Columbia Superior Court did not have jurisdiction. It will be most interesting to watch, as this case goes forward, what effect the U.S. SPEECH Act has on the ultimate enforceability of any decision.
It is expected that cases seeking to define the boundaries of defamation actions on the Internet will continue to occupy the courts' attention into the future.
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