The medium is not the message: reconciling reputation and free expression in cases of Internet defamation.

• Author: Danay, Robert
• Position: Canada

In this paper the author critiques the approach to defamation over the Internet taken to date by the Canadian common law courts. In the emerging jurisprudence, the courts have relied upon untenably bread generalizations about Internet technology, repeatedly equating it with traditional broadcast media and expressing grave concerns about the corresponding threat to reputation posed by online defamation. This has led the courts to hold that when defamatory words are transmitted using the Internet, this will vitiate the availability of any qualified privilege that would otherwise have immunized the defendant from liability under traditional defamation principles, and substantially increase any resulting award of damages. The author argues that this approach results in a failure te strike the appropriate balance between free expression and the protection of reputation. The jurisprudence can also be seen as a product of a longstanding and unfortunate analytical tendency in defamation law--primarily apparent through the libel/slander distinction--whereby common law courts attach extremely divergent legal consequences to impugned statements based on indefensibly broad generalizations about the degree of danger to persona] reputation posed by the medium in which the statement was communicated. Drawing inspiration from a comparison to defamation under the civil law of Quebec, the author proposes a new approach that eschews reliance upon unhelpful analogies and generalizations about particular media including the Internet, and involves the examination of impugned statements on a case-by-case basis, paying careful attention to the context in which these were actually made.

Dans cet essai, l'auteur critique l'approche adoptee par les tribunaux de common law canadiens sur la question de la diffamation sur Internet. Dans la jurisprudence emergeante, les tribunaux se sont bases sur des generalisations indefendables quant a ta technologie de l'Internet. Ils l'assimilent a de nombreuses reprises aux medias electroniques traditionnels et expriment de graves preoccupations quant a la menace correspondante que pose la diffamation en ligue pour la reputation. Cette approche a mene les tribunaux a statuer que lorsque des mots diffamatoires sont transmis sur Internet, les privileges qualifies qui auraient autrement immunise le defendeur contre toute responsabilite, suivant les principes de la diffamation traditionnelle, sont vicies. Le montant des dommages-interets accordes augmente aussi de facon substantielle.

L'auteur soutient que cette approche ne permet pas d'etablir l'equilibre approprie entre la libre expression et la protection de la reputation. La jurisprudence peut aussi etre vue comme le produit d'une facheuse tendance analytique de longue date en matiere de diffamation, tendance qui ressort surtout dans la distinction entre diffamation orale et ecrite. Suivant cette tendance, les tribunaux de common law attachent des consequenoes juridiques extremement divergentes a des declarations en litige, selon qu'elles soient orales ou ecrites. Ces consequences sont basees sur des generalisations larges et indefendables quant au degre de menace peur la reputation personnelle que pose le medium par lequel la declaration a ete communiquee. En s'inspirant d'une comparaison avec la diffamation en droit civil quebecois, l'auteur propose une nouvelle approche qui evite les analogies et les generalisations peu utiles au sujet d'un media particulier, dont Internet. L'approche prepesee implique un examen au cas par cas des declarations contestees, pretant une attention particuliere au contexte dans lequel elles ont ete enoncees.

**********

Introduction I. The Canadian Common Law Approach to Cyber-Libel A. Defamation over the Internet and the Qualified Privilege Defence B. Defamation over the Internet and the Calculation of Damages II. Why This Matters: Constitutional and Normative Implications III. Contextualizing the Emerging Cyber-Libel Jurisprudence IV. A More "Civil" Approach: Defamation Law in Quebec V. A Prescription for Reform: A Move from Caricature to Context A. Qualified Privilege: A Case-by-Case Assessment B. Quantification of Damages C. Summary Conclusion: Grant v. Torstar Corp.--A Potential Turning Point? Introduction

More than a century ago defamation law was mockingly derided by commentators as "old and out of date, moss-covered with age," (1) "absurd in theory, and very often mischievous in its practical operation," (2) and "infected with the foolish conceits, absurd paradoxes, superstition, and artificial reasoning of a semi-barbarous age." (3) Indeed this "enfant terrible of the [common] law," (4) whose long and convoluted historical journey can be traced back from the modern democratic and constitutional context to the Roman delict of injuria via the Star Chamber in England, (5) has for many decades been the subject of intense academic and judicial scorn. (6) Yet, despite being a rather ungainly composite of two sister torts--libel and slander--defamation law has persisted.

Notwithstanding its evident longevity, one would be forgiven for wondering whether this cause of action, which once served the decidedly medieval purpose of averting blood duels among easily inflamed British noblemen, (7) might be on a collision course with the emerging communications technologies of the digital age especially the Internet, For, as we will see, the medium of an allegedly defamatory communication has always been--and indeed continues to be one of the most important determinants of how a plaintiff in a common law defamation action will fare in meeting the requisite elements of the tort, fending off any defences that the defendant might raise, and collecting a significant damage award at the close of proceedings. It behooves us to ask: how will a tort, that over a century ago was regarded as being "three hundred years behind the age", (8) rationally assimilate communications technologies that could have scarcely been imagined even twenty-five years ago?

Though the jurisprudence is yet in its infancy, some alarming trends have already begun to emerge in the common law cases involving allegations of defamation using the Internet, sometimes referred to as "cyberlibel". (9) Chief among these has been a tendency on the part of the courts to rely upon generalizations about the Internet that paint the medium as being uniformly dangerous to individual reputation. In this regard, the refrain that has peppered the emerging jurisprudence has been that the Internet is "instantaneous, seamless, interactive, blunt, borderless and far-reaching" and "potentially a medium of virtually limitless international defamation." (10) Fuelled by these generalizations, Canadian courts have seemed to view their role in cyber-libel actions as that of a final bulwark against the defamatory excesses of those members of the general public who might abuse the tremendous new power entrusted to them by the Internet. This has led the courts to hold that when defamatory words are transmitted using the Internet, the availability of any qualified privilege that would otherwise have immunized the defendant from liability under traditional defamation principles will be vitiated, and will substantially increase any resulting award of damages.

These aspects of the emerging cyber-libel jurisprudence are of concern because they disrupt the delicate balance between the two competing constitutional values or goals that underpin the modern tort of defamation: protecting reputation (including personal dignity) and securing freedom of expression. (11) By treating the vast and diverse world of Internet communications as an undifferentiated and uniformly menacing whole, the courts improperly favour plaintiffs in most cyber-libel cases to the detriment of vibrant online free expression, and devalue individual dignity and reputation in cases involving other, less-feared media.

In order to fully appreciate the nature of the emerging cyber-libel jurisprudence, it is important to understand that it is actually the product of a long-standing, and unfortunate, analytical methodology that has woven itself into the very fabric of defamation law. This methodology, which can be traced back to the centuries-old distinction between libel and slander, flows from a judicial tendency among common law judges to attach disproportionate legal significance to the medium through which allegedly defamatory statements were made. Courts have historically relied upon crude generalizations about particular media and have tended to categorize them as being either extremely dangerous or presumptively unthreatening to reputation. In this calculation, the side of the fence that a particular medium fell was, and in many jurisdictions continues to be, crucial for potential plaintiffs since the legal consequences for being categorized one way or the other would often determine the outcome of their cases. Though the direct significance of the widely reviled libel-slander dichotomy has been dampened somewhat in Canada--at least in those provinces that have eliminated it by statute (12)--the judicial tendency to rely on generalizations characterizing new modes of communication as being tremendously pernicious persists in the emerging cyber-libel jurisprudence and has expressed itself through rulings dealing with the qualified privilege defence and the calculation of damages.

The link between judicial hostility toward the use of the Internet in emerging cyber-libel case law and the historical common law tendency to place too much emphasis on menacing caricatures of new communications media, is illustrated by a comparison with the civil law approach to the law of defamation in the province of Quebec--for cases both involving the Internet as well as in general. The law in this jurisdiction developed beyond the long shadow of the libel-slander dichotomy and pays scant attention to the particular medium in which...