In last month’s post, I provided a few practical tips for victims of online defamation. In this post, I will discuss a problem associated with defamation posted on a server located in the United States, and will provide some tips on how to respond to such a problem.
Hypothetical scenario
Following is an example of a question I recently received from a reader:
An anonymous person wrote defamatory stuff about me on an online blog. I followed your tips and searched for the contact information of the Internet Service Provider (ISP). I then discovered that the ISP is located in the United States. What should I do?
The immunity of American ISPs
In the area of online defamation, there are significant safeguards available to American ISPs, which are not available in Canada. For example, in most cases, American ISPs will be immune from liability for defamation posted on their servers. Moreover, if an American ISP is sued in Canada for defamation, and the plaintiff obtains a Canadian judgment against that American ISP, US courts are prohibited by statute from enforcing the Canadian judgment.
If a Canadian victim of defamation writes to an American ISP demanding that it remove the defamation from its server, the ISP might not respond because it would be operating under the assumption that it is immune from liability for defamation. Furthermore, the American ISP may not be deterred by a threat of a Canadian lawsuit.
What should you do?
Do not despair; you are not without legal recourse.
For example, some American courts may grant you an order against an ISP for the disclosure of the identity of the anonymous blogger, thereby allowing you to sue the blogger directly.
Another possible solution is to review the “terms and conditions of use” of the ISP (which are usually posted on its website). If the defamatory statements violate some of those terms, you could write to the ISP and demand that the posting be removed. This would give the American ISP the legal incentive to comply with your demand and remove the postings.
The most important thing is to stay positive and consult with Canadian and American lawyers who specialize in online defamation and who practise in the appropriate jurisdictions. They will be able to guide you on the most effective ways to deal with the problem on both sides of the border.
Look for next month’s post for tips on how to deal with search engines.
Maanit Zemel, Associate
Miller Thomson LLP
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