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«Bryan G. Baynham, QC and Daniel J. Reid TABLE OF CONTENTS I. INTRODUCTION 1 II. PUBLICATION 1 III. LIMITATION PERIODS 5 IV. HYPERLINKS 7 V. THE ROLE ...»

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THE MODERN-DAY SOAPBOX:

DEFAMATION IN THE AGE OF THE INTERNET

Bryan G. Baynham, QC

and

Daniel J. Reid

TABLE OF CONTENTS

I. INTRODUCTION 1

II. PUBLICATION 1

III. LIMITATION PERIODS 5

IV. HYPERLINKS 7

V. THE ROLE OF THE INTERNET SERVICE PROVIDER 8

VI. THE ILLUSION OF ONLINE ANONYMITY 10

VII. OBTAINING DISCLOSURE 13

A. THE RULES OF COURT 13

B. NORWICH PHARMACAL ORDER 15

VIII. BALANCING PRIVACY AND DISCLOSURE 19

IX. CONCLUSION 22

IX. MODEL DISCLOSURE ORDER 23

X. BIBLIOGRAPHY 26 I. Introduction: The Taming of the Wild West “In the early to mid 1990s it was fashionable to compare the unformed, open spaces of the internet to the 19th century American West: the 'electronic frontier'.”1 If the internet was once the wild west, it is now bustling metropolis. What was once the domain of a few early adopters has become a part of everyday life. Most people have at least one email address, and many have Facebook pages, blogs, or Twitter accounts. Since being launched in February of 2004, Facebook (the most popular social networking site) has grown to over 500 million active users. If Facebook was a nation, it would be the world’s third most populous.2 The rapid expansion of the internet coupled with the surging popularity of social networking services like Facebook and Twitter has created a situation where everyone is a potential publisher, including those unfamiliar with defamation law. A reputation can be destroyed in the click of a mouse, an anonymous email or an ill-timed tweet.

The law of defamation, driven by judge made common law, has evolved over centuries. While people are exceptionally adept at discovering new ways to defame one another, the common law has proven surprisingly adaptive to the electronic frontier. The Supreme Court of Canada has signalled it is alert to changing technologies: in the recent case of Grant v. Torstar3, the Court extended the “responsible communication on matters of public interest” defence to defamation not just to journalists, but to bloggers and online posters. As will be discussed in this paper, Canadian courts are able to grant effective relief to the defamed in many instances.

This paper explores defamation in the age of the internet. We have limited our focus to the elements of online defamation, issues of anonymity, and privacy concerns. We begin with an overview of some of the fundamentals of online defamation, including the location where publication occurs, the status of “hyperlinks” and the role of internet service providers (ISPs).

We then examines issues of anonymity and disclosure that often accompany online defamation cases. We then turn to two cases out of Ontario that balance privacy rights against disclosure, and conclude with a model procedure and order for obtaining the identity of an anonymous defendant in an online defamation case.

II. Publication The internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an internet connection… the internet is also potentially a medium of virtually limitless international defamation.4

–  –  –

In the 2004 case of Barrick Gold Corporation v. Lopehandia,5 the Ontario Court of Appeal held that there was something fundamentally distinct about internet defamation compared to defamatory statements published in other mediums. The court found that communication via the internet is characterized by its immediate worldwide ubiquity and accessibility, and for these reasons there is a greater risk online defamatory remarks will be both widely disseminated and easily believed. Online, “the truth rarely catches up with the lie.”6 The ubiquity and accessibility of online defamation poses another problem – often the road between publication and consumption passes through many jurisdictions. A disgruntled investor in Brazil may post nasty comments about a TSX-listed company on a British Columbia stock forum, which is then read by prospective investors in New York. Where should the company commence the action? Where the posting originated, in the jurisdiction it is read or in the jurisdiction where the damage occurs? A further consideration is whether a judgment obtained in one jurisdiction can be enforced in another – on August 10, 2010, American President Barack Obama signed the Speech Act, which shields American journalists, publishers (both print and online) and bloggers from foreign lawsuits.7 This law requires American courts not to recognize or enforce foreign libel tort judgments that conflict with the First Amendment, and may make it difficult to enforce Canadian defamation judgments in the United States.

In determining whether a defamation action can be brought in Canadian jurisdictions, Canadian courts have applied the common law tests of jurisdiction simpliciter and forum non conveniens (in British Columbia, these common law tests are codified in the Court Jurisdiction and Proceedings Transfer Act).8 Although the degree of connection can vary from case to case, it is clear that something more than accessibility is required for a Canadian court to assume jurisdiction. Although online defamatory statements may be available in Canada, it may not always be possible to sue in Canada.





By way of example, in Bangoura v. Washington Post,9 a Kenyan United Nations worker sued the Washington Post in Ontario for an article alleging that his UN colleagues had accused him of sexual harassment, financial improprieties and nepotism that allegedly occurred while he had been posted in the Ivory Coast. At the time he commenced his lawsuit, the plaintiff was an Ontario resident. In terms of publication in Ontario, there was evidence that at least seven Ontario residents had a subscription to the Washington Post. With respect to online availability, the article had been freely available globally for a period of fourteen days, and subsequently available for a fee on the pay-to-view Washington Post online archives.

Defamation in the Age of the Internet Bryan G. Baynham, QC & Daniel Reid © Harper Grey LLP 2010

-3While noting that “articles published on the Internet may proliferate well beyond their original target audiences into other jurisdictions”10 the Court held that there was no evidence that the article “reached significantly” into Ontario. Indeed, it appeared from records provided by the Washington Post that the only person who had accessed the pay-to-view online articles was the plaintiff’s lawyer. Accordingly, the Ontario Court of Appeal held that there was not a “real and substantial” connection between the online articles and Ontario, and it would therefore be improper for Ontario to assume jurisdiction.

Conversely, in Burke v. NYP Holdings, Inc.,11 Mr. Justice Burnyeat allowed former Vancouver Canucks General Manager Brian Burke to proceed with his lawsuit against the New York Post in British Columbia. In this case, the Post published an article alleging that Burke “personally challenged” the Canucks to target Colorado Avalanche player Steve Moore during an NHL game in 2004. The New York Post did not deliver to British Columbia, however the court had before it affidavit evidence that the online version of the article had been accessed in the province, and had been mentioned on a Vancouver call-in radio sports program. The newspaper brought an application to strike the claim on the grounds that British Columbia did not have jurisdiction or ought to decline jurisdiction over the defendants in relation to the claims made.

In dismissing the application, Mr. Justice Burnyeat found there was a sufficient connection

between British Columbia and the alleged defamation for the lawsuit to proceed:

While the Defendants have little or no business connection in British Columbia, it is clear that the Post is a major newspaper in what many describe as the financial capital of the United States which, in turn, is described by many as the most powerful country in the world. By establishing a website which is available on the Internet worldwide, it is reasonably foreseeable that the story set out in the Column would follow Mr. Burke to where he resided. The concept of a “worldwide web” is aptly named.12 More recently, in Black v. Breeden,13 the Ontario Court of Appeal confirmed that Ontario had jurisdiction and was an appropriate forum to hear Conrad Black’s six libel actions in respect of statements posted on the Hollinger International, Inc. website. The statements had been picked up and republished in Ontario by a number of Canadian newspapers.

In finding that the alleged tort occurred in Ontario, the court pointed to evidence that defendants did target and direct their statements to this jurisdiction, including the fact that the press releases posted on the Internet specifically provide contact information for Canadian media, as

–  –  –

well as U.S. and U.K. media: “the contact information for Canadian media clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond.”14 The Ontario Court of Appeal also noted that, while not a resident of the province, Black had significant connections to the province and a reputation in the province. Accordingly, Black’s reputation in the province had been damaged,15 and the lawsuit was allowed to proceed.

While online publications may be available globally, in order for Canadian courts to assume jurisdiction there must be something more than mere availability. Factors including whether the publication was read in the province, whether the plaintiff had a reputation in the province, and whether the plaintiff’s reputation was damaged in the province will be considered by the court in assuming or declining jurisdiction.

–  –  –

III. Limitation Periods - The Permanence of the Internet A troublesome issue that arises in online defamation cases is when, if ever, the limitation period begins to run on statements that remain accessible online. Some jurisdictions, namely a number of American states, have adopted a “single publication rule”, under which the limitation period begins to run once a statement is first posted published (including being posted online), and that subsequent sales or deliveries do not constitute a fresh cause of action.16 Other jurisdictions, including the United Kingdom17, and Australia18 have rejected the “single publication rule”, holding instead that each subsequent publication represents a fresh cause of action.

In Carter v. B.C. Federation of Foster Parents Assn.,19 the B.C. Court of Appeal wrestled with this issue, and came down in favour of the approach adopted in most Commonwealth jurisdictions: an online publication remains actionable so long at it is published.

In this case, the plaintiff became aware of allegedly defamatory postings about her on an online forum in 2000, but did not commence an action against one of the defendants until more than two years had passed. The trial judge adopted the “single publication rule” and dismissed the action as being limitation barred.20 In reversing this decision, the Court of Appeal held that each publication gave rise to a distinct

cause of action:

If defamatory comments are available in cyberspace to harm the reputation of an individual, it seems appropriate that the individual ought to have a remedy. In the instant case, the offending comment remained available on the internet because the defendant respondent did not take effective steps to have the offensive material removed in a timely way. Although, for the reasons noted by the trial judge, legislatures may have to come to grips with publication issues thrown up by the new development of widespread internet publication, to date the issue has not been legislatively addressed and in default of that, I do not consider that it would be appropriate for this Court to adopt the American rule over the rule that seems to be generally accepted throughout the Commonwealth;

namely, that each publication of a libel gives a fresh cause of action.21 Recently, the English Court of Appeal went further, holding that the “responsible journalism in the public interest” defence to defamation (the U.K. equivalent of Canada’s “communication on matters of public interest” defence) requires that an online archive of a story must be updated to take account of exculpatory developments.

Defamation in the Age of the Internet Bryan G. Baynham, QC & Daniel Reid © Harper Grey LLP 2010

-6In Flood v. Times Newspapers Ltd.,22, a police officer was accused, in a newspaper article, of taking bribes from Russian exiles with criminal connections. The article was printed in the paper edition of the Sunday Times, and was also made available in its entirety online. Approximately a year after the article was first published, a report cleared the police officer of any wrongdoing.

In rejecting the “responsible journalism” defence, one of the concurring judges the English Court

of Appeal noted that the online article was not changed to reflect the findings of the report:

If the original publication of the allegations made against DS Flood in the article on the website had been, as the Judge thought, responsible journalism, once the Report's conclusions were available, any responsible journalist would appreciate that those allegations required speedy withdrawal or modification. Despite this, nothing was done.23 In Canada, the “communication on matters of public interest defence” to defamation is applicable to bloggers and other online publishers. This case raises the question – do bloggers and other online media outlets have an ongoing obligation to update their stories to reflect changing facts?

Logic dictates that this new defence be applied consistently, irrespective of whether the defendant is a seasoned reporter at a national newspaper or a “citizen journalist” who publishes his or her own blog.

–  –  –



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