Libel and Defamation in the Age of the Internet

• Author: David A. Potts; Erin Stoik
• Pages: 11-28

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Libel and Defamation in the Age of the Internet

A succinct description of the internet and how it operates was provided by

Binnie J of the Supreme Court of Canada in Society of Composers, Authors

and Music Publishers of Canada v Canadian Assn of Internet Providers, [2004]

2 SCR 427 at paras 9–10:

[9] An Internet transmission is generally made in response to a request sent

over the Internet from the end user (referred to as a “pull”). The host server

provider transmits content (usually in accordance with its contractual obli-

gation to the content provider). The content at issue here is the copyrighted

musical works in SOCAN’s repertoire.

[10] In its decision dated October 27, 1999 ((1999), 1 C.P.R. (4th) 417, at

p. 441), the Copyright Board provided a succinct description of an Internet

transmission:

First, the f‌ile is incorporated to an Internet-accessible server. Second,

upon request and at a time chosen by the recipient, the f‌ile is broken

down into packets and transmitted from the host server to the recipi-

ent’s server, via one or more routers. Third, the recipient, usually using

a computer, can reconstitute and open the f‌ile upon reception or save

it to open it later; either action involves a reproduction of the f‌ile,

again as that term is commonly understood.

One of the more comprehensive discussions of the distinctive character-

istics of the internet and cyberlibel is found in the Ontario Court of Appeal

decision of Barrick Gold Corp v Lopehandia (2004), 71 OR (3d) 416 (CA) at

paras 28–31:

[28] Is there something about defamation on the Internet—“cyber libel”, as

it is sometimes called—that distinguishes it, for purposes of damages, from

defamation in another medium? My response to that question is “Yes”.

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[29] The standard factors to consider in determining damages for defam-

ation are summarized by Cory J. in Hill at p. 1203. They include the plaintif‌f’s

position and standing, the nature and seriousness of the defamatory state-

ments, the mode and extent of publication, the absence or refusal of any

retraction or apology, the whole conduct and motive of the defendant from

publication through judgment, and any evidence of aggravating or mitigating

circumstances.

[30] In the Internet context, these factors must be examined in the light

of what one judge has characterized as the “ubiquity, universality and utility”

of that medium. . . .

[31] Thus, of the criteria mentioned above, the mode and extent of

publication is particularly relevant in the Internet context, and must be con-

sidered carefully. Communication via the Internet is instantaneous, seamless,

interactive, blunt, borderless, and far-reaching. It is also impersonal, and the

anonymous nature of such communications may itself create a greater risk

that the defamatory remarks are believed: see Vaquero Energy Ltd. v. Weir,

[2004] A.J. No. 84 (Q.B.) at paragraph 17.

According to the US Federal Court of Appeals at para 81 in American Civil

Liberties Union v Reno, 929 F Supp 824 (ED Pa 1996), af‌f’d by Reno v ACLU,

521 US 844 (1997), there are several features that make the internet “a unique

and wholly new medium of worldwide human communication.” The court

stated at paras 79–80:

79. Because of the dif‌ferent forms of Internet communication, a user of the

Internet may speak or listen interchangeably blurring the distinction between

“speakers” and “listeners” on the Internet. Chat rooms, e-mail and newsgroups

are interactive forms of communication providing the user with the opportun-

ity both to speak and to listen.

80. It follows that unlike a traditional media, the barriers to entry as a

speaker on the Internet do not dif‌fer signif‌icantly from the barriers to entry

as a listener. Once one has entered cyberspace, one may engage in a dialogue

that occurs there. In the argot of the medium, the receiver can and does

become the content provider and vice-versa.

CHARACTERISTICS OF THE INTERNET

The characteristics of the internet that are clearly of importance in cyberlibel

proceedings are: