G. Cyber-defamation

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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The Internet is not a defamation-free zone. The fundamental elements to establish a cause of action and the enumerated defences apply equally to electronic communications made by e-mail, texting, and tweeting and to statements found on websites, chat rooms, message boards, and blogs. The magic of the common law process is that it allows fundamental principles to be developed and applied to new technologies and circumstances. This process is not, however, free from contention or challenges and Canadian courts have begun to address some of the issues arising from cyber-defamation. The authoritative resolution of these issues at the highest level has yet to occur but it is possible to identify some of the issues, canvas alternative resolutions, and sense the current judicial mood.

There was some suggestion initially that the courts might take a more robust view of online communications and be less inclined to find statements to be defamatory because of freedom of expression interests, the anonymity of many communicators, a general willingness of Internet users to discount the veracity of online banter, and the group characteristics of those using various Internet sites. The courts, however, have not been attracted to that view. Cyber-communications are treated in the same way as communications made by more conventional means. Indeed, online defamation may be viewed more seriously given the potential for very wide publication, the longevity of some postings, and the significant harm that may follow.39A number of cases have considered some novel issues relating to the publication of defamatory statements. The first relates to the conventional rule requiring proof by the plaintiff that the defamatory statement was communicated to a third person. This may pose problems in cyberspace where e-mail may be deleted without being read and the proof of "hits" on a website or notice board does not, in itself, prove that the offensive words were read.40One alternative is to apply a rebuttable presumption of publication if Internet-users have accessed the particular site. The second issue relates to the liability of third parties

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such as Internet service providers (ISPS) and other intermediaries for the defamatory content in third-party communications facilitated by their service. Technically every republication creates a new cause of action. Many of these intermediaries can shelter under the innocent dissemination rule by arguing that...

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