For the London Free Press – October 3, 2011

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ONLINE: ONTARIO SUPERIOR COURT DECISION DOES NOT MEAN YOU CAN SAY WHATEVER YOU WANT WITH IMPUNITY

The Ontario Superior Court recently decided that a blog comment must pass a higher threshold before it’s considered defamatory than statements made in other places.

Defamation is the communication to third parties of a false statement that tends to injure the reputation of an individual. Slander is oral defamation. Libel is written defamation.

The reasoning in the case of Baglow v. Smith includes the thought that an ongoing blogging thread is akin to a debate. The person who felt wronged by a comment has an opportunity to reply to set the record straight and lessen the impact on his reputation of the original statement.

That makes sense if the two parties were already both involved in the online banter. But might be less applicable if the aggrieved party had not been involved in the debate prior to the comment.

Another thought was that given the nature of the online forum, readers would be less likely to interpret comments such as in this case — which suggested the person was a Taliban supporter — as being intended to be factual.

It probably didn’t help the complainant’s case that he had made some derogatory comments of his own in the comment thread. To determine if a statement is defamatory, it must be looked at in the context of the conversation or publication as a whole, and not as an isolated statement.

But this decision doesn’t mean the Internet is a defamation- free zone and that one can say whatever one wants with impunity. It just means the analysis as to whether particular comments on the Internet amount to defamation considers the nature of the medium. That makes sense, as defamation is about what the public thinks as a result of the comment.

Earlier defamation decisions about material posted on the Internet have awarded higher damage awards than if it had been published on paper. The rationale is there is a broader distribution of the comment.

So we could be in the position where a defamatory comment in an article on the Internet or in a blog post or on some form of social media might have a risk of a higher damage award — but the threshold for being considered defamatory in the first place is higher. In other words, more potential damages, but less risk of being found defamatory in the first place.

And the risk of a comment being considered defamatory might be less if discussion ensues, especially if the aggrieved party is involved in the discussions.

The bottom line — if someone makes a comment online about you that you think might affect your reputation, you should think carefully about what to do about it.

On the one hand, it might not attract enough attention to do any real harm, and the wrong reaction might just bring more attention to it. On the other hand, its online nature gives the opportunity for a measured, rational reply to set the record straight.

For the London Free Press – October 4, 2010

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The case deals with defamation on the Net and how to decide where to sue for it

(NOTE: The title in the newspaper version was “Black lawsuit a case of libel tourism” – which is incorrect. )

Conrad Black has become a household name, thanks to his notorious legal wranglings. Black also is engaged in an Ontario-based legal proceeding that is equally as interesting as the U.S. legal circus.

The case deals with Internet defamation and how to determine where to sue for it. As with traditional defamation, a party alleging Internet defamation must demonstrate they suffered damages in Ontario and also that they have a significant connection to Ontario. Where Internet defamation differs from traditional defamation is that the alleged victim must prove the statements in question targeted Ontario.

In Black v Breedan, Black brought an action for libel against directors, advisers and a vice-president of Hollinger International for statements posted on the Hollinger website. Black argued his reputation was damaged in Ontario as a result of these defamatory statements that had been reproduced in a number of prominent Canadian newspapers, such as the Globe and Mail and the National Post.

The case became interesting from a legal standpoint when the defendants brought a motion to have the case dismissed, arguing Ontario courts did not have jurisdiction in the matter. The defendants claimed the action had no real and substantial connection to Ontario and, as a result, Ontario was not the convenient forum. That was based on the notion the matters that the alleged defamation referred to took place in the U.S.

The motions judge disagreed, finding Ontario to have the requisite connection to the action and thus to be the proper jurisdiction. The Court of Appeal agreed with this and in the process provided some enlightening comments on the jurisdictional challenge posed by Internet defamation.

Where defamation actually occurs – and thus where one can sue – has been the subject of much controversy over the years. The Internet has added a new dimension to this conundrum since statements can be published on websites available around the world.

However, there would be an innumerable amount of lawsuits if one were allowed to sue in every jurisdiction where the defamatory statement was read. To guard against this, Ontario courts will determine if the website targeted its statements so that they would be read in Ontario. In Black v Breedan the Court of Appeal decided there was sufficient evidence to prove the statements did target Ontario. The court based this decision, in part, on the fact that the Hollinger website provided contact information for Canadian media. The court held that this proved Hollinger expected the statements to be read by Canadians.

Black v Breedan is noteworthy because of the online aspect of the alleged defamation. Because anything posted on the Internet can be seen anywhere in the world, it has led to “libel tourism” – where someone who thinks they have been defamed will try to sue in whatever jurisdiction they might be most successful in, and get the highest damage award.

Black v Breedan tells us that – at least in Ontario – libel tourists are not welcome.

For the London Free Press – April 5, 2010

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Court upholds judge’s decision a hyperlink to defamatory material doesn’t make the person posting the link liable for defamation

The British Columbia Court of Appeal decision in Crookes vs. Newton dealt with the issue of whether posting hyperlinks on one’s own website that link to defamatory content on other websites can trigger defamation liability.

Jon Newton, the defendant, owns and operates the p2pnet website. He posted an article on July 18, 2006, with hyperlinks to websites that contained articles defaming the plaintiff, Wayne Crookes, a Vancouver businessperson, president and sole shareholder of West Coast Title Search Ltd., and a volunteer for the Green Party of Canada.

Crookes and his lawyer asked Newton to remove the hyperlinks. Newton refused. It was Crookes’s position that Newton was a publisher of the impugned articles found at the hyperlinked websites. Newton was of the view there was no need to remove them because they were “merely a hyperlink.”

In October 2008, the judge dismissed the action against Newton for damages on the basis that Crookes had failed to prove publication of the alleged hyperlinked defamatory material.

That order was appealed to the B.C. Court of Appeal. That court confirmed the mere fact that a person may include a hyperlink on his own website linking to another site does not make that person publisher of the content of the hyperlinked site. And if that person is not the publisher, he is not liable for any defamation on the linked site.

The court set out two aspects to the publication element in defamation cases: the first, concerning “the act of promulgating the impugned item,” and the second relating to “the receipt of that item by a person within the court’s jurisdiction.”

On the first point, the court noted there was a barrier between the article and the hyperlinked websites that had to be bridged by the reader. The court of appeal’s view was in such a situation, the reader leaves the original article and enters a different, and independent, website.

The majority disagreed with the minority finding that Newton’s article served “as words of encouragement, or an invitation” to browsers. Instead, the court agreed with the judge’s reasons that “the circumstances of a case may add more so as to demonstrate a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents.”

On the second point, the court acknowledged there may be cases where more information is available to support an inference that a person in the court’s jurisdiction got access to the impugned articles by clicking on them. But that information was not available in this case.

The appeal court ultimately upheld the judge’s decision, ruling that a mere hyperlink to defamatory material does not make the person posting the hyperlink liable for defamation.

But if the linking website endorses the material or encourages the browser to go to the hyperlinked website, the linking website may be held liable because that might constitute publication.

UPDATE:  After this article went to press, the Supreme Court of Canada announced that it will hear an appeal of this case – so stay tuned to see if the Supreme Court has different thoughts or confirms this decision.

For the London Free Press – January 25, 2010

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“Responsible communication” expands media freedom of expression and opens door to more frank discussion of matters of public policy

If you don’t have anything nice to say, be sure to say it in the name of public interest.

The Supreme Court of Canada recently changed defamation law with its ruling in Grant v. Torstar. The case dealt with allegations that a wealthy land developer in Northern Ontario had bypassed regular government approval procedures for building a golf course, courtesy of friends in high places.

The Charter of Rights and Freedoms guarantees freedom of expression. But there’s a limit to what one can express.

Under defamation law, if a statement unjustifiably compromises a person’s reputation, that person can sue for damages.

In recent years, there has been concern that defamation law has resulted in media outlets suffering “libel chill.” The suggestion is the media have toned down or left out what they wished to say, for fear of being sued.

In the Grant v. Torstar decision, the Supreme Court created a new defence to defamation. This “responsible communication” defence effectively expands the freedom of expression afforded to media and opens the door to more frank discussion of matters of public policy.

To succeed, the new defence requires that the publication must be a matter of public interest, and the publisher must have been diligent in trying to verify the allegations. Factors to be considered when measuring diligence are:

• the seriousness of the allegation
• the public importance of the matter
• the urgency of the matter
• the status and reliability of the source
• whether the plaintiff’s version of the story was asked for and accurately reported
• whether including the defamatory statement was justifiable
• whether the statement’s public interest lay in the fact that it was made rather than its truth
• other relevant circumstances.

In other words, it is now possible to inaccurately report something of public interest, but have a viable defence to defamation so long as you take steps to get your facts straight at the outset.

This change is unlikely to result in a media free-for-all. In the decision, Chief Justice Beverley McLachlin cautions “The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.”

It is noteworthy that bloggers are explicitly included in this test. Whatever uncertainty existed previously about allegations in cyberspace, the law is now clear: if you make controversial claims, you must do due diligence, however you publish them.

For the London Free Press – July 28, 2008

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A recent Supreme Court of Canada decision concerning a libel suit against a radio host referred to the changing attitudes surrounding public comment and defamation in today’s modern and technologically savvy society.

In WIC Radio Ltd. v. Simpson, the court recognized that in an era where everyone can be a publisher, people may react to comments and interpret people’s comments differently than before.

The case considered whether comments made by a well-known radio talk-show host about a social activist were actionable as defamation. The Supreme Court clarified the tests to determine the parameters of the “fair comment” defence.

In his portion of the decision, Justice Louis LeBel stated:

“There is no doubt that a comment may be defamatory. It must simply be borne in mind that just because someone expresses an opinion does not mean that it will be believed and therefore affect its subject’s reputation.

“This is all the more true in an age when the public is exposed to an astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians’ satire, to a high school student’s blog. It would quite simply be wrong to assume that the public always takes statements of opinion at face value. Rather, members of the public must be presumed to evaluate comments in accordance with their own knowledge and opinions about the speaker and the subject of the comments.”

The law will never evolve as fast as technology’s effects. Sometimes that’s good, as it allows things to sort themselves out without changes in the law not in our long-term interest. It’s encouraging, however, to see comments like this, as it shows the Supreme Court considers how the law should evolve in modern reality.

It is quite true that the Internet and other methods of communication cause us to rethink many things.

Justice LeBel’s point is that because we are more used to hearing opinions and points of view from diverse and numerous sources, we are less likely to jump to negative conclusions about the individual being commented on. In other words, a negative comment or two from one or two sources is less likely to make the public think less of the individual, which is the basis of defamation.

And a higher threshold for making the public think less of you can make the traditional cease-and-desist letter in response to that comment a risky move. In what has been dubbed the “Streisand effect,” that kind of response can backfire by bringing even more attention to the comment. As well, a perceived over-sensitive reaction to a comment can actually legitimize the comment.

When faced with the publication of a negative comment, don’t just assume it will be believed. A strong reaction in response demanding the comment be deleted, or some other action be taken, might bring more attention to the initial comment, legitimize it and subject you to ridicule.