Internet Libel and Jurisdiction Issues
| Author | George Takach |
| Profession | Adjunct Professor |
| Pages | 620-671 |
There has already been much discussion in this book of the Internet
and the legal issues engendered by this network of computer net-
works.1This book, however, has consciously not devoted a separate
chapter to the Internet, nor has it opted to treat the Internet as an alto-
gether novel or unique phenomenon. Rather, approaching the Internet
as another step along the steady path of the evolution of computers and
networks, this book has attempted to integrate the analysis of Internet
issues into the technologies and business processes that were its pred-
ecessors, such as telegraphy, telephony, and broadcasting. Indeed, the
four dynamics of computer law that have driven these industries are
currently driving the Internet as well; moreover, the Internet may well
be the phenomenon that best exemplifies the active and sustained
620
1 A brief description of the Internet was offered in chapter 1, section A.6, “The
Internet”; intellectual property issues related to it were canvassed in chapter 2,
particularly in sections C.6, “Copyright and the Internet” and C.7, “Trade-
marks, Domain Names, and the Internet”; the impact of it on criminal law was
discussed in chapter 3; the issues related to regulation of it were discussed in
chapter 4, including its possible regulation by the CRTC in section D.3, “Regu-
lating Broadcasting over the Internet,” and various regulatory aspects of e-com-
merce in section E, “Regulating E-Commerce”; licensing and tax issues germane
to it were discussed in chapter 5, sections C.3, “Licensing in a Digital Environ-
ment” and G.3, “Tax and Internet-Related Activities,” respectively; and contract
and evidence law legal questions related to doing business on it electronically
were discussed in chapter 6.
INTERNET LIBEL AND
JURISDICTION ISSUEs
chapter 7
operation of the rapid pace of technological change, the elusive nature
of information, and the blurring of private/public and national/inter-
national.2Nonetheless, while there are some truly revolutionary char-
acteristics of the Internet, the legal issues presented by it are best
understood in their historic context, drawing on existing and prior
analogies and metaphors; that is, in approaching the Internet it is sen-
sible not to overreact (and, for example, to be “overwhelmed” by its
novelty), but neither to underreact (and, for example, to be lulled into
a sense of déjà vu by its sameness with what has come before). Thus,
the following discussions of Internet libel and jurisdiction issues are
firmly rooted in the principles and analyses developed by the law in
response to a series of pre-Internet technologies and business practices.
A. Cyber Libel
1) Libel Law and the Internet
The Internet provides unprecedented opportunities for local, regional,
national, and global communications of text and other content. Chap-
ter 1 described the technology that makes the e-mail, Web site,
usegroups, and other features of the Internet an important advance in
the history of message passing among humans.3Included in such mes-
sages, of course, will be defamatory ones. Defamation is a published
false or derogatory statement that discredits a person, or impugns that
person’s honesty or integrity, or brings into doubt the person’s financial
solvency, provided the statement is made known to a third party and is
not excused because it is the truth or fair comment or protected by
privilege.4In the recent Hill case, the Supreme Court of Canada spoke
eloquently about the danger of defamation, and the laudatory objective
Internet Libel and Jurisdiction Issues 621
2 These dynamics are important, and are a unifying theme throughout this book.
For a discussion of them, see chapter 8, section A, “Computer Law: Dynamics.”
3 As mentioned in chapter 1, section A.6, “The Internet,” American Civil Liberties
Union v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996) [ACLU] provides a solid analysis
of how the Internet works and also how it differs from other electronic commu-
nication media. Although the ACLU case dealt with the constitutionality of U.S.
legislation aimed at certain pornography, its observations about the Internet are
also relevant to formulating sensible and practical libel rules for the Internet.
4 For a good discussion of the intricacies of defamation law, see Raymond E.
Brown, The Law of Defamation in Canada, 2d ed. (Toronto: Carswell, 1994)
(looseleaf, updated) [Defamation].
of protecting a person’s reputation being the essential purpose of the
law of libel:
Although much has very properly been said and written about the
importance of freedom of expression, little has been written of the
importance of reputation. Yet, to most people, their good reputation
is to be cherished above all. A good reputation is closely related to the
innate worthiness and dignity of the individual. It is an attribute that
must, just as much as freedom of expression, be protected by society’s
laws. ...
Democracy has always recognized and cherished the fundamen-
tal importance of an individual. That importance must, in turn, be
based upon the good repute of a person. It is that good repute which
enhances an individual’s sense of worth and value. False allegations
can so very quickly and completely destroy a good reputation. A rep-
utation tarnished by libel can seldom regain its former lustre. A dem-
ocratic society, therefore, has an interest in ensuring that its members
can enjoy and protect their good reputation so long as it is merited.5
The court in the Hill case also gives a brief historic overview of the libel
law to the present day, including its important role in the age of the Star
Chamber in seventeenth-century England to replace duelling and
blood feuds. The civil law of Quebec also provides for the protection of
reputation by enshrining the principle in both the Quebec Civil Code
and the Quebec Charter of Human Rights and Freedoms.6Defamation
may also be criminal in its nature; see the discussion of criminal libel
in chapter 3, section B.7, “Criminal Libel.”
The law of defamation is extremely relevant to the Internet because
just as the Internet is the ultimate vehicle developed to date to effect
copyright infringement, a subject discussed in chapter 2, section C.6,
“Copyright and the Internet,” so too does the Internet promise to be
the supreme mechanism for perpetrating libellous statements. Indeed,
it is truly unique in that it is the only means of mass communication
where the author of the disseminated material is generally not subject
to an editorial filter prior to publication, at least at the point of initial
622 COmputer Law
6 Article 3 of the Civil Code of Quebec provides: “Every person is the holder of
personality rights, such as the right to life, the right to the inviolability and
integrity of his person, and the right to the respect of his name, reputation and
privacy. These rights are inalienable.” Section 4 of the Quebec Charter of Human
Rights and Freedoms, R.S.Q. c. C-12, states: “Every person has a right to the
safeguard of his dignity, honour and reputation.”
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