Jennifer Jannuska, 1997
16 July 1997: Please read the update at the end of this paper.
The Internet is not immune to defamation. In fact, this medium, some would argue, is uniquely prone to "personal insults, [and] violent expressions of disapproval"(1). This phenomenon even has its own name in cyberspace, "flaming":
Flame1. vi. To post an email message intended to insult and provoke. 2. vi. To speak incessantly and/or rabidly on some relatively uninteresting subject or with a patently ridiculous attitude. 3. vt. Either of senses 1 or 2, directed with hostility at a particular person or people. 4. n. An instance of flaming.(2)
Most experienced Internet users, however, do not consider flaming to be defamatory(3). A certain toughness of skin is expected of users(4). Flaming is seen as a small price to pay for the unprecedented freedom of speech that users enjoy on the Internet.
When we talk about defamation on the Internet, we usually refer to a more serious kind of reputational assault than being flamed, although the distinction is not always clear(5). True defamation, while nowhere near as prevalent as flaming on the Internet, is certainly a matter of much concern. Reputations are being damaged and abused here as much as anywhere else, and the abusers seem to easily flee into the night, courtesy of anonymity, pseudonymity, and sheer geography(6). The difficulty in tracking liability to the authors of defamatory statements will undoubtedly lead many victims to seek justice against the intermediary distributors. Henry Perritt, an Internet issues scholar at Villanova Law School, describes the problem for "intermediaries":
An inability to answer [jurisdictional] questions satisfactorily increases the pressure to hold intermediaries liable, because unsatisfactory answers to the jurisdictional questions make legal recovery from content originators less likely. The Internet tradition of allowing anonymity makes the position of intermediaries even worse. If the victim cannot identify the originator because she is anonymous, immunizing an intermediary leaves a faultless victim bearing the loss.(7)
Sopinka J. has, likewise, said that anonymity will increase the likelihood of holding online service providers liable: "Where the defamatory message is posted by an anonymous user, a court may be reluctant to excuse the service provider and leave the injured party empty-handed."(8)
This paper will tackle the difficult questions of when and how liability for defamation should attach to the online service provider under Canadian law.
It should be noted at the beginning that the Internet does not prima facie create problems for applying defamation law. A statement "published"(9) on the Internet is as "published" as a statement in a newspaper or a handbill or on a billboard, and such a statement can be subjected to the same tests of truthfulness, malice, and so forth(10). In fact, there have already been a number of successfully litigated Internet defamation lawsuits in the United States(11) and abroad(12). This paper is not concerned with litigation against content originators. That issue seems to have been settled satisfactorily.
The problem at hand is what liability online service providers will be forced to assume for third party defamation.
I use the term "online service provider" as a generic term representing at least two distinct kinds of actors: pure access providers and mixed providers(13). What these two have in common is that they both provide access to the Internet. Individuals purchase time from service providers which have the equipment and phone-lines to route the users' incoming modem calls out into the broader Internet, sometimes referred to as "cyberspace." "Mixed" service providers, besides giving this access to the Internet, also originate some of their own content. America On-Line is an example of this type of service provider. Confusion sets in where a service provider allows content originating from third parties to be stored at and disseminated from the service provider's computers. The question of whether third party content can give rise to liability for a service provider was the focus of two American decisions, Cubby v. CompuServe(14) and Stratton Oakmont v. Prodigy(15).
Cubby v. Compuserve and Stratton Oakmont v. Prodigy
There was a story told by the head of the legal section of a large on-line service provider about a new lawyer he had just hired. She said "I don't know anything about Internet law". He said "don't worry; there are only two cases, you can read them in an afternoon, and they contradict each other."(16)
Cubby and Stratton are the leading cases to address the question of service provider liability for defamatory statements. As attorney Timothy Denton's quote above indicates, the two cases seem to stand in stark contrast. While the court in Cubby allowed the defendant, CompuServe, the defence that CompuServe had no knowledge of the defamatory content and should therefore not be held liable, the court in Stratton disallowed this "common carrier" defence(17), arguing that Prodigy was exercising editorial control such that it was responsible for defamatory material republished through its service.
Cubby was the first of the two decisions. The facts of that case were as follows: The defendant, CompuServe, had developed contracts with outside publishers to provide newsletters and information databases for its "CompuServe Information Service", a service accessible to CompuServe subscribers through the CompuServe network. One such newsletter "Rumorville" was a daily publication which contained articles about broadcast journalism and journalists. A competing publication was developed by the plaintiffs, Cubby, Inc., called "Skuttlebut". "Skuttlebut" was accessible as a private Bulletin Board Service to subscribers dialing into the database through their home computers. The defamatory statements in question were published in "Rumorville" in April 1990 accusing "Skuttlebut" of stealing their information "through [the] back door" and republishing it as their own. The question at bar was whether CompuServe could be held liable as a republisher of the defamatory material. The majority of the District Court held that CompuServe could not be held liable for the material because it was a mere "passive conduit" for the material:
[CompuServe] exercises no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.(18)
In Stratton, defamatory statements alleging fraudulent acts on the part of the plaintiff, Stratton Oakmont, a securities investment firm, were published in "Money Talk," a computer bulletin board managed by the defendants, Prodigy Services Company. The statements in question alleged:
That Stratton Oakmont had "committed criminal and fraudulent acts in connection with the initial public offering of stock of Solomon-Page Ltd.";
That "the Solomon-Page offering was a 'major criminal fraud' and '100% criminal fraud'"; and
That Stratton Oakmont "was a 'cult of brokers who either lie for a living or get fired."(19)
"Money Talk" is an on-line forum where Prodigy subscribers can discuss rumors in the financial community. Charles Epstein, an employee of Prodigy, was a "Board Leader," whose task it was to keep discussion on "Money Talk" running smoothly, according to guidelines set out by Prodigy. The issue was whether Epstein, on behalf of Prodigy, had published the defamatory statements on Prodigy's service. Ain J., for the Supreme Court of New York, held that Prodigy, by holding themselves out to the world as a content-editing service provider, and by instructing Board Leaders to exercise judgment in what material they allowed into the forums, voluntarily accepted responsibility for the defamatory content of statements published on its service.(20) This decision was upheld and the court dismissed a motion by the defendants in December 1995 to have the court vacate its previous decision in light of new evidence indicating that Prodigy, at the time of the statements, was functionally unable to review each new post to forums such as "Money Talk".(21)
Republication and Dissemination in Canadian Law
The general rule of republication under Canadian law is that "every repetition of a defamatory statement is a new publication, for which a separate cause of action will lie."(22) This general rule means that republishers can claim no defence in the fact that they did not originate the material, nor can they claim a defence in the fact that they published the material thinking it to be true.(23)
However, there is no liability under Canadian law for individuals who "act as a mere conduit for the dissemination of defamatory information".(24) Thus, individuals have a defence that they were playing a merely "subordinate role" in disseminating defamatory material.(25) Brown says that such subordinate players traditionally include "vendors of books, magazines, and newspapers, or carriers, and librarians".(26)
Such players have available the defence that they were not "publishers" of the material, that they were mere "innocent disseminators". The test for innocent dissemination was considered in Vizetelly v. Mudie's Select Library Ltd.(27) A distributor can take the benefit of this defence where the distributor can show:
4. That [they were] innocent of any knowledge of the libel contained in the work disseminated by [them],
5. That there was nothing in the work or the circumstances under which it came to [them] which ought to have led [them] to suppose that it contained a libel, and
6. That, when the work was disseminated by [them], it was not by any negligence on [their] part that [they] did not know that it contained the libel,
then, although the dissemination of the work by [them] was primâ facie publication of it, [they] may nevertheless, on proof of the before-mentioned facts, be held not to have published it.(28)
The test, therefore, is one of knowledge: whether the distributor had knowledge or was negligent in failing to ascertain that the disseminated material contained defamation.(29)
This is a very useful defence for the online service provider. One industry spokesman, Timothy Denton, counsel to the Canadian Association of Internet Providers (CAIP), has said:
CAIP has no objection to the publishers of material being held responsible for their speech and publications. We simply insist that ISP's are transparent conduits, and as such have the same liabilities as telephone companies for the traffic passing through our routers.(30)
The business of an online service provider is such that the provider rarely has knowledge of defamatory content before the matter is brought to its attention in a complaint. The failure to review all content should not be viewed as negligent, but as an exigency of the sheer volume of information traffic being transmitted through the provider:
Anyone who has stood in the middle of a room full of electronic boxes and listened to the hum of traffic can tell you that there is little point in making the ISP liable for stored information.(31)
It is reasonable to expect that this defence will be affirmed in Canadian courts if the defendant is genuinely a conduit for the information, and is not making any attempts at vetting information coming through its channels.(32)
A recent case affirmed this defence in regard to a printer, who was merely reproducing a book containing a libel. In Menear v. Miguna,(33) the Court made the finding of fact that,
U. of T. Press did not read the manuscript for the book, had no editing function, and was not aware of the alleged libellous statements. U. of T. Press's only involvement with the book was to print and bind the copies of the book and deliver them to the author, Miguna.(34)
Finding that the University of Toronto Press was not a publisher, Wright J. proceeded to find that, in the alternative, the defendants could have relied on the defence of innocent dissemination. In further comment, Wright J. asserted that:
Printers should not be held liable for defamation simply by virtue of being the printer. In light of the changing technology in the printing process, it would be unreasonable to hold a printer liable on the facts of this case.(35)
The comment seems to leave open the door for online service providers to argue that they are not liable because the technology demands that they are unable to review the material they disseminate for defamatory content.
However, the application of the defence may run into snags. Lack of information about Internet technology among the judiciary could play a factor in whether the defence is considered. This is the subject of the next section of this paper.
Misconceptions and Liability Avoidance
Many justices seem to think that it is reasonable and possible for online service providers to review every piece of material coming through their channels. This misconception was apparent in Stratton.(36) In Stratton the court was obviously persuaded that Prodigy's editorial staff had "the ability to continually monitor incoming transmissions and in fact [did] spend time censoring notes."(37) What is particularly troubling about the case is the court's apparent unwillingness to look at evidence indicating that Prodigy was functionally unable to exercise the kind of editorial control that the court had ascribed to it. One of Prodigy's managers stated in affidavit in Prodigy's motion for renewal that:
The [previous] Court "was given the false impression that Prodigy possesses and exercises significant editorial control and judgment over the content of its bulletin boards."(38)
The court acknowledged, furthermore, that they suffered from a lack of information about Internet technologies.(39)
Misconceptions based on the Stratton decision's reasoning are evident in comments Sopinka J. made in a speech at Queen's University:
It is difficult to be definitive with respect to the likely result [of a case like Cubby or Stratton] under Canadian law ... The result will ... depend on the facts of the case. Service providers cannot simply rely on the fact that they cannot expect to vet the material that appears on their bulletin boards.(40)
Likewise, a number of academics and critics have adopted the Stratton reasoning as gospel, while failing to learn more about the technology itself, and the type of business run by the typical online service provider. One such academic says that the Stratton decision:
lays the ground-work for increasing liability on the part of on-line providers who consciously choose to advertise content control, but at the same time decline or fail to exercise reasonable care to effectuate that promise... On-line providers should ... take away from Stratton v. Prodigy a heightened awareness of their legal vulnerabilities.(41)
Others have resigned themselves to Stratton's influence and focus on informing online service providers how to "do their best" in avoiding liability:
Insist on real names and addresses from all your users and a signed user agreement. Review and respond to all complaints promptly. Be prepared to review and delete offensive messages and users who repeatedly post such messages. Get insurance if you can afford it.(42)
A recent discussion paper presented to the Information Highway Advisory Council, acknowledged that,
The present state of civil liability law calls for access providers to adopt preventive policies in order to manage their responsibility in the manner which is most compatible with the Internet and so as to minimize, for themselves as for others, the harm which could be caused by actionable information on the Internet.(43)
Perhaps the most extreme suggestion for liability avoidance has come from Canadian author-practitioners Drew Jackson and Timothy Taylor, recommending that, in light of the Cubby decision, "an online provider ... would seem wise to subcontract the operation of any discussion group it hosts."(44)
Yet liability avoidance will not solve the issue once and for all. This approach only engenders greater callousness and ambivalence toward defamation within the service provider industry, a "see no evil-hear no evil"(45) approach that will not bring satisfaction to defamation victims.
For this reason, some writers have suggested that courts implement what the writers call a "Good Samaritan" protection. The protection would operate so that service providers who take an initiative to do some form of content screening as a public service, will not be found liable for the fact that they let some objectionable material "through the net."(46)
I argue, however, that this type of blanket protection, while morally appealing, is not necessary if defences such as "innocent dissemination" are properly applied, with a view to the facts in each individual situation. Furthermore, blanket protection might, perversely, shield providers from liability who exercise their screening power negligently. There are a variety of service providers doing business. Some of these providers are small enough and have sufficient personnel and resources to screen content. Where such providers have knowledge or imputed knowledge of defamation and do not respond reasonably, they should be held liable.
Likewise, there is probably no need for sui generis legislation of the type envisioned by the constitutionally-uncertain Communications Decency Act(47) in the United States:
(1)No person shall be held to have violated subsection (a) or (d) for solely providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.(48)
Although some additional certainty might be gained if Canada legislated an explicit defence for pure access providers against civil liability, a defence of the type envisioned in the CDA is already available by application of the common law in Canada. Specifically, the defence of "innocent dissemination" as stated in Vizetelly(49) and adopted in cases such as Menear(50) could easily be extended to online service providers who are "solely providing access or connection".
The next section of this paper looks at some of the ways that Canada can treat these Internet issues with sensitivity to the Internet medium. The section will focus on the innocent dissemination rule as the basis for service providers to defend themselves against liability in defamation actions. The section will also consider possible defences and strategies in situations where the innocent dissemination rule does not apply.
Innocent Dissemination Comes to Cyberspace
The defence of innocent dissemination has been analysed as it exists in Canadian law, and there is no reason to suspect that it cannot be applied successfully by an online service provider which genuinely exercises no control over the material that passes through its channels.
For the defence to apply, it must be shown that the service provider had no knowledge and no reason to know of the defamation which is available through its service. When successful, the defence vitiates the publication element necessary to find liability for defamation. The outcome in such a case in Canada, would be similar to the outcome in Cubby,(51) a finding that the service provider was a "mere conduit". Courts can use analogous precedent such as that found in Menear(52).
A more difficult situation, however, will be where the service provider is also exercising control over the material passing through its channels. This will occur, for example, where the service provider has a policy of responding to complaints, by cancelling allegedly defamatory messages from its server, or by taking other actions appropriate to the circumstances.
When a online service provider receives a complaint, there is a presumed knowledge of the material. This knowledge takes the service provider out of the scope of the innocent dissemination rule. If the service provider takes action to cancel the message, it will probably be protected by analogous Canadian doctrines developed for paper bulletin boards.
The general rule of bulletin boards states that a person in control of the premises where a bulletin board is located is deemed to be the "republisher" of the material posted there, and will be liable for defamatory content, when the person has knowledge of the defamatory content.(53) However, a bulletin board owner is held to have discharged her duty, and is not liable, when she removes the offending message within a reasonable amount of time.(54)
Complaint-response is the mode of action that has been adopted by the CAIP, which has adopted a voluntary Code of Conduct stating that:
6.0 Although Internet providers are unable to monitor all content, CAIP members will make a reasonable effort to investigate legitimate complaints about alleged illegal content or network abuse, and will take appropriate action.(55)
The commentary to article 6, states that:
6.1 Due to the impracticality of surveying content on the World Wide Web and Usenet sites, CAIP has elected to deal with content and abuse issues on the basis of a complaint-driven process.6.2 Information about the procedures to receive and respond to complaints or inquiries established by each CAIP member, shall be made available to users. However, what constitutes appropriate action will vary depending upon the results of the investigation in [article] 7.0 ... and on what role the CAIP member has played in the transaction or activity at issue.(56)
This code is an example of how flexibility can be written into a predictable and reasonable standard of care for online service providers. The code allows CAIP members to take action based on complaints, but allows that a variety of actions, even non-action, may be appropriate in individual circumstances. It encourages service providers to "investigate" complaints, but it does not say that the finding of fact by the service provider should be equivalent to a court's finding of fact. Moreover, the code acknowledges that the "role" of the service provider will need to be taken into account when a court evaluates the provider's liability.
There is reason to believe that this kind of pro-active approach by service providers will be encouraged and upheld by the courts. In-house enforcement was upheld as appropriate and constitutionally-sound in Blaber v. University of Victoria.(57)
Robin Blaber approached the Court for an injunction re-instating his university Internet account, after the University of Victoria revoked his access to the account over abusive and offensive letters that Blaber had sent through e-mail to several individuals at the University. The Court refused to consider Blaber's request for a Charter(58) remedy based on the infringement of his freedom of expression. Owen-Flood J. affirmed that the University, as a service provider, had acted within its authority to revoke Blaber's account.(59)
Blaber shows that the courts will be willing to honour a service provider's decision to revoke an account, or, less drastically, to remove an offending message.
This leaves open the problematic question of what will happen to a service provider which chooses not to take any action against a message that turns out to be defamatory. As was stated before, a belief that the message was not defamatory is not a valid defence.(60) It seems that the indication to service providers is that they should "remove the message first and ask questions later" to avoid taking liability upon themselves. However, this may not be a very desirable standard to impose. It would tend toward chilling the Internet medium, and would undoubtedly meet strong resistance from Internet users. One thinks of other examples of over-zealous censorship on the Internet. In once instance, CompuServe tried to respond to the paranoia about pornography on the Internet by setting up a screening device which would cancel any message with one of CompuServe's list of "inappropriate" words. The result was that users found themselves unable to access a Usenet group for breast cancer survivors.(61)
More reasonable would be to allow service providers the defence that they took reasonable steps to ascertain whether the material was defamatory and, relying upon information from counsel or other reasonable authority, left the message on their system, a due diligence protection. I would urge that courts consider this defence as means of compromising between the "evils" of a person's reputation being tarnished and the chilling of reasonable free speech.
The Internet is a medium which gives rise to new ideas on defamation law. In the next section of this paper, I will consider a new victimology of the tort of defamation. Canada has a tradition of balancing interests and conflicting rights and freedoms. Canada may be uniquely situated to create a genuinely Internet-friendly doctrine of the liability of online service providers.
Canada and the Future of Online Defamation Law
There has already been pressure in certain circles for Internet law to be constructed with a view to the medium itself, rather than reliance on knee-jerk analogy. The age of the Internet-sensitive judgment may be upon us, heralded by the ACLU v. Reno(62) decision, which members of the press have called "an Internet primer."(63) In ACLU,(64) which considered the constitutionality of a federal statute prohibiting, inter alia, the online distribution of obscene or "indecent" materials to minors, the district court sitting with a justice of the Court of Appeals asserted that
[I]n order to apprehend the legal questions at issue in these cases, it is necessary to have a clear understanding of the exponentially growing, worldwide medium that is the Internet, which presents unique issues relating to the application of First Amendment jurisprudence and due process requirements to this new and evolving method of communication.(65)
Likewise, in Canada, Parliamentary committees have been toying with different concepts of liability in the area of Internet law. The number of commissioned reports that have been presented to the specially-created Information Highway Advisory Council is impressive.(66) The most recent of the IHAC reports(67) clarifies the legal issues surrounding the civil liability of service providers, yet the report does not come down firmly in any area saying that strict liability, or a negligence standard should prevail. The report leaves it up to Parliament and the courts to resolve the dilemma, merely presenting options and questions for courts to consider when dealing with particular factual situations (for example, whether the service provider was acting in the role of disseminator or content provider(68)). The report acknowledges the role to be played by industry groups using self-regulation, and urges courts to respect these voluntary steps and uphold the commitments pledged in these codes of conduct.(69) The comprehensive report is not a law reform proposal, although we can suppose that its contents will be highly influential.
Along with the pressure to create a rational basis for applying liability to service providers, there is also pressure on courts to re-evaluate the entire doctrine of defamation law, in light of the Internet. That the Internet offers an unprecedented freedom of speech, and access to speech, is almost a trite truism, however, the Internet probably deserves the hype it continues to get. As Denton says,
The Internet ... will continue to revolutionize how you do work, what work is, how you entertain yourself, whether your organization will continue to exist, and whether your trade or business has power. The Internet is everything you can think. Like Mozart, it cannot be overrated.(70)
When I say that the Internet might cause the entire law of defamation to be re-evaluated, I refer to a view that is gaining popularity that says that defamation law decreases in relevance as access to communications media increases. Matthew Siderits makes the point that,
In [a system allowing for the free exchange of ideas], there is a better response than a lawsuit when one finds a statement on-line that one does not like: get on the keyboard and send a measured statement in kind letting people know what you think.(71)
More pointedly, civil liberties lawyer, Mike Godwin has argued that the theory behind libel law may be obsolete in cyberspace. He argues that
In the long run, it may be that the Net kills libel lawsuits ... Our ability to use the Net to rebut charges is a much more satisfying remedy... More people who feel they've had their reputations besmirched have access to self-help. If some bozo writes 100 lines of false statement and innuendo about your sex life or personal habits, you can write 500 lines of point-by-point refutation. It's a "day in court" that comes cheap.(72)
It is not so much that reputations are less important or less fragile in cyberspace, but more that there are other interests whose value may be equally sacred.
Perhaps this idea will resonate well with Canadian tradition. One cannot overlook the fact that the Supreme Court of Canada has recently said that defamation law is a reasonable limit on free speech in Canada, in the landmark decision of Hill v. Church of Scientology of Toronto(73).
However, the idea of pre-eminent free speech may not be as remote as we think. Sopinka J. says that
The information age has brought us a wonderful instrument which enables us to vastly expand our knowledge and comprehension of the world. It is not, however, an unmitigated blessing. There are excesses and abuses... I predict that only partial success will be achieved in eliminating the abuses. Some will remain. Some members of society will be left without redress. While this is to be regretted, it is the price we pay for the right to enjoy freedom of speech and the price we pay for the many benefits that we derive and will continue to derive from this powerful new medium.(74)
Perhaps it is time for a new victimology of defamation. The Internet may challenge some of the traditional orthodoxies of defamation law. The orthodoxy that a victim of defamation is always the sympathetic loser of the equation may be challenged, as we find that the technology empowers the "little guys" to defend themselves and benefit from the same "soap box" as their defamers. The orthodoxy that defamers are all malicious evil-doers may be challenged by the love-hate relationship that the Internet maintains toward its flamers (many of whom end up looking like "idiots" and "malcontents"(75) say some Internet regulars). Finally, the orthodoxy that defamation is a private tort may be challenged. The Internet shows us just how public defamation can be. There are public interests that are at stake now -- third party interests, such as the interest of an online service provider to do an honest business, and the interests of society at large to avail itself of a medium of unprecedented free expression -- that should not be overlooked or "balanced" out of the equation. A re-evaluation seems to be an appropriate strategy for Canada.
Conclusion and Recommendations
I have attempted, in this paper, to evaluate the liability of online service providers for defamatory content. Specifically, I have asserted that Canadian courts should be prepared to extend the defence of innocent dissemination to online service providers who can prove that they are unable to exercise editorial control over content passing through their channels. The decision in Menear(76) indicates that courts can use a factual analysis of a technological medium to find that a defendant was not in a publisher of the defamatory content.
I have also asserted that courts should, more generally, evaluate claims against online service providers using a negligence standard, rather than a strict liability standard. Online service providers should only be found liable for content where it can be shown that:
1. The service provider had knowledge of the defamatory content and failed to take appropriate action to remove the content within a reasonable period of time;(77) or2. The service provider had imputed knowledge of the defamatory content (by receiving a complaint about the content) and failed to make suitable inquiries into whether the content was in fact defamatory; or
3. The service provider or one of its agents had authored the defamatory content.
The mere failure of an online service provider to remove a message where a complaint has been lodged should not prima facie indicate that the service provider was negligent. If the service provider made suitable inquiries with respect to the message, relied upon a legal authority that the message was not defamatory, and thereby left the message on its service, the service provider should be held to have discharged its duty of care, and should not be liable as a publisher.
Although not specifically discussed in this paper, I would also tentatively propose that defamation should be actionable on a negligence standard against anonymous remailer services.(78) An anonymous remailer service might be found negligent, and thereby, be found to have published defamation, where the service fails to divulge (or fails to keep records of) information that would enable a defamed party to trace the author of an "anonymous" defamation.(79) There are differences of opinion in the legal community as to what standard of liability should be applied to anonymous remailers, from strict liability proponents(80) to those who would defend the right to anonymity as a paramount civil liberty.(81) More specific research and debate of the question of anonymous remailers is needed in Canada.
Throughout this paper, I have addressed the liability of the online service provider for defamation. Specifically, I have argued for defences which would protect service providers from liability. However, such defences are likely to leave aggrieved parties without traditional legal redress for the damage to their reputations. It has been suggested that parties make use of self-help, specifically using Internet technology to respond to statements made against them. It is true that the Internet provides many individuals access to a publishing medium which would formerly have been unavailable to all but the most "public" figures.(82) However, not everyone is "on" the Internet yet. If self-help becomes the means adopted of dealing with libel issues in Canada, it is possible that either the courts or the legislatures will have to implement provisions allowing and, perhaps, financially subsidizing, aggrieved individuals to avail themselves of the Internet for the purpose of response and public refutation. Nonetheless, I would be remiss if I did not admit that self-help will not be a satisfactory answer in all cases. There will, undoubtedly, continue to be some truly sad cases, in which no amount of "response" can fix the damage done to an individual's reputation by a defamatory remark. We must continue to rely on the courts to exercise a measured sympathy for victims of defamation and to deliver decisions that provide appropriate redress where just.
There are many new challenges to defamation law presented by the advent of the Internet. This
paper conveys just some of the difficult balancing that must be done to accommodate the interests
of the number of players affected by a defamation tort on the Internet. This paper, hopefully, also
conveys a caution for the courts not to put "the law" before "the facts". The facts, the new
situations arising because of technological advances, lead us to the application of law that is just,
and not vice versa.
1. See definition of "flames" under "Netiquette" in D. Morse, ed. CyberDictionary: Your Guide to the Wired World, abr. ed., available with the January 1997 issue of P.C. World at 26. Also available at the website of the publisher, KnowledgeExchange, at http://www.datamania.com/kex/def.html .
2. From the Hacker's Dictionary, available at the website of the publisher, Datamation, at http://www.datamation.com/PlugIn/humor/jargon/jargon_20.html#SEC27 .
3. "[On the Internet] 'flaming' foes with nasty notes has turned hyperbole into a high art," J. Knight, "Free Speech Collides with Cyberspace" Washington Post (21 November 1994) 19.
4. "Anyone who plans to spend time on-line has to grow a few psychic calluses," Anonymous e-mail, quoted in M. Dery, "Flame Wars" (1993) 92 South Atlantic Q. 559 at 560.
5. Walter Cronkite has reported seeing on the Internet "a three-page, very slickly done presentation alleg[ing] that [Cronkite] was drunk in an Orlando restaurant and spit in a man's soup." As quoted in "Bob Talbert's Quote Bag" Detroit Free Press (2 February 1997) 5E.
6. "Disembodied, sometimes pseudonymous combatants tend to feel that they can hurl insults with impunity (or at least without fear of bodily harm)." Dery, supra note 4 at 559.
7. H.H. Perritt, Jr., "Jurisdiction in Cyberspace: the Role of Intermediaries" (Address to Kennedy School of Government, Harvard University, 28 January 1996) (emphasis mine), available at http://www.law.vill.edu/harvard/article/harv96k.htm .
8. "Freedom of Speech and Privacy in the Information Age" (Address to Queen's University, Faculty of Law, 21 November 1996), available at http://www.canniff.com/tmdenton/queens.html .
9. For the purposes of defamation law, "publication" refers to the fact that a defamation must be "published to a third person" to be actionable. Publication includes the repetition of a defamatory statement by a person other than the original author. See R. Brown, The Law of Defamation in Canada, vol. 1, 2d ed. (Scarborough: Carswell, 1994) at para. 1.5(1)(f).
10. The fact of information being delivered electronically does not make it immune to civil liability. This conclusion was reached in Daniel v. Dow Jones & Co., 520 N.Y.S.2d at 334 (Civ. Ct. 1987). See the discussion of this case in C.L. Counts & C.A. Martin, "Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier" (1996) 59 Albany L. Rev. 1083 at 1092. For a brief introduction to the elements of a defamation action, see Brown, ibid. at para. 1.5(1).
11. For example, Medphone Corp. v. DeNegris, Civ. Action No. 069400012 (D.N.J. 1992). Also Suarez Corp. Industries v. Meeks, Civil Action No. 267513 (Ct. of Common Pleas, Cuyahoga Cty. Ohio). See the discussion of these cases in M.C. Siderits, "Defamation in Cyberspace: Reconciling Cubby, Inc. v. CompuServe, Inc. and Stratton Oakmont v. Prodigy Services Co." (1996) 79 Marquette L.Rev. 1065 at 1069.
12. Rindos v. Hardwick (31 March 1994), Western Australia 940164 (Sup. Ct.). Available at
13. I borrow these terms from Counts & Martin, supra note 10 at 1092.
14. 776 F.Supp. 135 (S.D.N.Y., 1991) [hereinafter Cubby]. Also available at
http://www.leepfrog.com/E-Law/Cases/Cubby_v_Compuserve.html .
15. 1995 W.L. 323710 (N.Y. Sup. Ct., May 24, 1995) [hereinafter Stratton]. Also available at
http://host1.jmls.edu/cyber/cases/stratton.txt .
16. T. Denton, "Speech Notes for an Address to the Canadian Bar Association (Ontario): The
Liabilities of Internet Service Providers - and what we plan to do about them" (7 November
1996), available at http://www.canniff.com/tmdenton/cbao.html .
17. The "common carrier" defence is similar to the defence of "innocent dissemination" in
Canada. The common carrier defence exists in the common law of broadcasting in the United
States and has been applied analogously to Internet communication. See the discussion of the
innocent dissemination rule below, in the section "Republication and Dissemination in Canadian
Law".
18. Cubby, supra note 14 at 140.
19. Stratton, supra note 15 at 1.
20. Ibid.
21. Stratton Oakmont v. Prodigy, 1995 W.L. 805178 (N.Y. Sup., 1995) [hereinafter Stratton(2)].
Available at http://host1.jmls.edu/cyber/cases/strat-2.txt .
22. Brown, supra note 9 at para. 7.7.
23. See ibid.
24. Ibid. at para. 7.12(6).
25. Ibid.
26. Ibid. (footnotes omitted).
27. [1900] 2 Q.B. 170 (C.A.).
28. Romer L.J. in ibid. at 180. Also see Sun Life Assurance Co. of Canada v. W.H. Smith and
Son Ltd., (1933), 150 L.T. 211 (C.A.).
29. This requirement has been stated by Brown: "The question is whether there was any
negligence on their part in the sense that they knew or should have known that the paper, book or
magazine was likely to contain a libel," supra note 9 at para. 7.12(6) (footnote omitted).
30. Denton, supra note 16 (emphasis mine). Note that an American case has held that public
telephone companies are not liable for content disseminated through the use of company
equipment. See Anderson v. New York Telephone Company, 35 N.Y.2d 746, 320 N.E.2d 647
(C.A. N.Y., 1974).
31. Denton, ibid.
32. One commentator has argued that even if a service provider is exercising broad editorial
controls, liability should not be imposed if it does not exercise more than the broad managerial
discretion associated with bookstores. See M. Godwin, "Leaky Logic," Internet World (February
1996), available at http://pubs.iworld.com .
33. (1996), 30 O.R. (3d) 602 (Gen. Div.) [hereinafter Menear].
34. Ibid. at 603.
35. Ibid. at 608.
36. Supra note 15.
37. Ibid. at 5.
38. Stratton(2), supra note 21 at 2.
39. Ain J., in ibid. at 1, stated that
40. Supra note 8 (emphasis mine).
41. R.B. Charles & J.H. Zamansky, "Liability for Online Libel after Stratton Oakmont, Inc. V.
Prodigy Services Co." (1996) 28 Conn. L. Rev. 1173 at 1175.
42. P. Sim, "Prodigy in Canada: On line Libel Revisited" (July 1995), available at
http://www.mbnet.mb.ca/~psim/libel2.html . Also see P. Sim, "Electronic Libel: Responsibility
of BBS Operators" (3 October 1994), available at http://www.mbnet.mb.ca/~psim/libel.html .
43. M. Racicot et al., "The Cyberspace is Not a 'No Law Land': A Study of the Issues of
Liability for Content Circulating on the Internet," Report Commissioned by Industry Council in
the Summer of 1996, Submitted to the Information Highway Advisory Council in February 1997.
Available at http://strategis.ic.gc.ca/sc_indps/sectors/engdoc/nme_hpg.htm .
44. M.D. Jackson & T.L. Taylor, The Internet Handbook for Canadian Lawyers (Scarborough:
Carswell, 1996) at 184.
45. Frank Darr has argued that "The courts' approach [in Cubby and Stratton] sets up a perverse
incentive to do nothing," "A Proposed Defamation Standard for Commercial Computer
Information Systems" (1996) 18 Hastings Comm. Ent. L.J. 267 at 279.
46. See the description of the proposal in Counts & Martin, supra note 10 at 1111.
47. Communications Decency Act of 1996, being Title V of Telecommunications Act of 1996,
Pub. L. No. 104-104 [hereinafter CDA], available at
http://epic.org/free_speech/censorship/cda.txt .
48. Ibid., § 502 (emphasis mine).
49. See supra note 27.
50. See supra note 33.
51. See supra note 14.
52. See supra note 33.
53. See Brown, supra note 9 at para. 7.4.
54. Ibid.
55. Canadian Association of Internet Providers, Code of Conduct (1996), available at
http://www.caip.ca/caipcode.htm .
56. Ibid.
57. (1995), 123 D.L.R. (4th) 255, C.C.L. 8335 (B.C.S.C.) [hereinafter Blaber].
58. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
59. Blaber, supra note 57.
60. See Brown, supra note 9 at para. 7.7.
61. See M. Quinn, "CompuServe Halts Access to Internet Sex Groups" (29 December 1995) San
Francisco Chronicle A1, available at http://www.sfgate.com/net/quinn/1229.html .
62. 929 F.Supp. 824 (3rd Cir. 1996) [hereinafter ACLU]. Available at
http://www.aclu.org/court/cdadec.html .
63. R. Carelli, "Low-Tech Supreme Court to Explore Cyberspace to Rule on Limiting Net" The
Detroit News (16 March 1997) 2A.
64. Note that the decision is, at the time of this writing, being heard by the Supreme Court.
Updates on the challenge, including transcripts of the arguments and copies of the ACLU briefs
and press statements can be found at the ACLU website at http://www.aclu.org .
65. Supra note 62 at 830 (emphasis mine).
66. Some of the reports available include: "Illegal and Offensive Content on the Information
Highway", June 1995; "Educational Opportunities on the Information Highway", October 1994;
"The Canadian Information Highway -- Building Canada's Information and Communications
Infrastructure", April 1994. IHAC's website is located at
http://info.ic.gc.ca/ic-data/info-highway/ih-e.html .
67. Racicot, supra note 43.
68. Ibid. at 189.
69. Ibid. at 192.
70. Supra note 16.
71. Supra note 11 at 1082.
72. M. Godwin, "Libel Law: Let it Die" (1996) 4.03 Wired, available at
http://www.hotwired.com/wired/4.03/idees.fortes/letitdie.html .
73. [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129.
74. Supra note 8 (emphasis mine).
75. See CyberDictionary, supra note 1 at 14.
76. See supra note 33.
77. This basis of liability can be extended by analogy from precedent involving paper bulletin
boards. See discussion above in the section, "Innocent Dissemination Comes to Cyberspace".
78. An anonymous remailer service is a commercial service:
N. Levine, "Establishing Legal Accountability for Anonymous Communication in Cyberspace"
(1996) 96 Colum. L. Rev. 1526 at 1527. Anonymous remailer services work by removing the
tagging information at the top of an Internet transmission, which gives clues as to the identity and
location of the author.
79. A negligence standard for anonymous remailers is discussed in detail in Levine, ibid.
80. See T. Hardy, "The Proper Legal Regime for 'Cyberspace'" (1994) 55 U. Pitt. L. Rev. 993.
81. See M. Godwin, "Who Was That Masked Man?," Internet World (January 1995), available at
http://pubs.iworld.com .
82. See a discussion of this phenomenon in M. Godwin, "Libel, Public Figures, and the Net"
Internet World (June 1994), available at
http://www.eff.org/pub/Legal/net_public_figures_godwin.article .
[The argument to re-open the case] is persuasive ... especially considering the lack of guidance
concerning the "Internet" prior to the Court's decision. In other words, the Court finds that this
is a developing area of the law (in which it appears that the law has thus far not kept pace with the
technology) so that there is a real need for some precedent.
which allows anyone with access to a computer and an electronic mail (e-mail) account to send
messages, pictures, and computer programs either to other individuals with e-mail accounts or to
Internet newsgroups without the recipients knowing the origin of the communication.
Update:
Menear v. Miguna, [1997] O.J. No. 2233 (C.A.), was reversed on appeal, 3 June 1997. Although the appeal did not consider the validity of the "innocent dissemination" defence, the appellate court found that the original ruling in favour of the defendants was improper due to the lack of a jury. I am indebted to Stephen Gillies, counsel for the appellant, for bringing this appeal ruling to my attention.