Internet communication through social networking (or social media), such as Facebook, LinkedIn, MySpace and Twitter, is fast becoming the most popular mode of communication in the 21st century, and has facilitated freedom of expression and speech, globalization of information and even popular revolutions. Many people enjoy posting their personal views, opinions and musings on blogs, chat rooms, newspaper and magazine articles, and other forums on all topics—artistic, philosophical, educational, social, political and legal.
The Internet provides the public with an amazing opportunity to exercise and enjoy the constitutionally protected right to freedom of expression. Posting thoughts and ideas on the Internet has become a quick and efficient way to communicate with others. Websites with interactive services like chat rooms and bulletin boards allow Internet users to debate and discuss any topic they wish. And if you cannot find a website that appeals to you, you are free to create your own.
With the freedom to publish without pre approval or prior censorship, material is posted online that would not be printed in a mainstream newspaper. A newspaper company has editors, experienced journalists, and lawyers, all trained to protect the company from liability. In comparison, the average Internet user or website operator may be totally unaware of the potential liability that can result from publishing defamatory material. The Internet may appear to provide total freedom of expression, but defamation law applies to what is published on the Internet and limits what people can post online.
But what is Internet defamation?
First we must understand what is traditional defamation, which may also be referred to as libel, slander, disparagement, defamation of character, and other things.
Legally, defamation is established when a plaintiff proves that the defendant has made a defamatory statement to a third party (newspaper, magazines, fliers or letters) regarding the plaintiff. A defamatory statement is any statement that would, in the estimation of “reasonable” persons, lower the reputation of the plaintiff in his or her community.
Once the plaintiff has established that defamatory words were published, the onus shifts to the defendant to prove that the offending words are defensible. The usual defences to a defamation claim are that the words claimed to be defamatory were:
- True (justified) — In Canada, the onus is on the defendant to prove that allegedly defamatory comments are substantially true
- Fair comment (not malicious) — Honestly held expressions of opinion on matters of public interest, based on facts
- Published on an occasion of privilege — Provincial statutes provide a defence of privilege to various forms of reports; for example, the statutory privilege for fair and accurate reports on court proceedings. In addition to court proceedings, legislation also protects fair and accurate reports on public meetings and communications, and decisions by bodies that represent governmental authority in Canada. In addition to statutory privileges, the common law recognizes a qualified privilege that protects defamatory statements when the defendant had a legal, moral or social duty in making the statement, and the recipient of the information had a corresponding interest in receiving the information. Qualified privilege has been recognized in numerous situations, including communications regarding employment (for example, reference letters), family, union matters, business-to-business interests, litigation and medical concerns. The question in each case is whether or not there is an interest in publishing and a corresponding interest in receiving the information.
Defamation is a common law tort that is very complex; communications on the Internet exacerbate the situation. Internet defamation, or “cyber-libel”, is adapted from the traditional defamation principles to deal with online communication (message boards, bulletin boards, email, blogs, chat rooms, personal websites, social media, social networking sites, or other published articles).
A couple of things that make Internet defamation especially complex are anonymity and the lack of geographical limits to information online.
Internet defamation or cyber-libel laws are still evolving all over the world. As a result, many existing cases are contradictory, and there is no firm judicial precedent.
For more and a list of Canadian court decisions involving the publication of allegedly defamatory material via the Internet, McConchie Law Corporation has a good website.
Also, Defamation Bytes: The Law of Internet Defamation in Canada, by law firm Macleod Dixon examines the main legal issues in Canada and how Canadian courts have handled this topic so far.
First Reference Human Resources and Compliance Managing Editor