Three recent decisions tackle this issue: 

In the US decision of Cornelius v. DeLuca, 2009 WL 2568044 (E.D. Mo. Aug. 18, 2009), bodybuilding.com (an online retailer of fitness and bodybuilding products), was sued over the content of certain comments posted to the bodybuilding.com website. The plaintiffs complained that the comments were designed to harm the plaintiffs’ business. This decision considered whether the operator of bodybuilding.com should be liable for those user comments.  In the US, there is a standard defence for website operators (Section 230 of the Communications Decency Act), but that defence can be punctured if the operator was in a “conspiracy” relationship with the persons posting the comments.  The court found no such conspiracy and so the website operator was found to be not liable, and the claim was dismissed.  

In Canada, in the decision this month in Warman v. Lemire 2009 CHRT 26, a Human Rights Tribunal found that a site operator should not be liable for comments if the operator had no notice or knowledge of the comments.  This is a “hate speech” case, not a corporate defamation case as in the Cornelius v. DeLuca decision above. Also, it’s worth noting that this comes from a Human Rights Tribunal, not a Canadian court. The decision maker said: “I do not see how liability for hate messages posted by anonymous or pseudonymous third parties should be ‘attributed’ to a message board operator if it has not been established that he or she has notice or knowledge of these postings.” Several comments and articles were reviewed, and in one of the cases, the impugned article was posted or uploaded by the administrator or webmaster.  In that instance the operator was found to be responsible.  However, the operator escaped punishment on constitutional grounds.  The decision is expected to be appealed.

The BC Court of Appeal’s decision last week in Crookes v. Newton 2009 BCCA 392 considered liability for hyperlinks. In that decision (one of many generated by Mr. Crookes’ lawsuits), the Court of Appeal agreed that Mr. Newton was not liable for hyperlinks to defamatory content. The Court reasoned that “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”.  In other words, if someone merely hyperlinks to a defamatory site, that alone does not make that person a “publisher” of the material found at the hyperlinked site.  This will help clarify the liability of website hosts or operators, since user comments which merely link to defamatory or other offending material, will not attract liability.

Calgary – 09:15 MST

Updated Sept. 22 16:42 MST