When I wrote an article about online defamation in 2005, MySpace and YouTube were still relatively unknown.  The prospect of a highschool principal suing former students for defamation would have been remote.  Now, it’s a reality. 

In Canada, the issue of internet defamation came back into the spotlight when Sharman Networks CEO Nikki Hemming filed a libel lawsuit against p2pnet last year.  The suit will be interesting to watch as it may clarify when ISPs and hosts of online discussion forums will be liable for publication of defamatory content. 

In the 2003 case of Bahlieda v. Santa, the Ontario Court of Appeal dealt with a complaint of online defamation.  The lower court initially decided that the online material qualified as a ‘broadcast’ (similar to a television or radio broadcast) for the purposes of the provincial Libel & Slander Act.  Under that law a defendant can deflect a complaint if it is not brought within six weeks.  On appeal, the court overturned this decision, allowing the complaint to proceed.

In Weiss v. Sawyer, a defamatory letter was published in both the hard-copy paper and online version of a newspaper.  Both the paper and the online versions were treated as ‘newspapers’ for the purpose of the provincial libel and slander law, and the time limits applied. The complaints were dismissed because they were brought outside those strict time limits. However, an email transmission of the same material was not considered a ‘newspaper’ or ‘broadcast’ under the legislation. The complaint in connection with the email was allowed to proceed.

ISPs and online content-providers probably can’t take advantage of the protections afforded to newspaper publishers or broadcasters unless the material appears in an online version of a traditional newspaper or broadcast.

 

Calgary – 11:45 MST