Copyright Daniel Burnett, 1997
Owen, Bird
Vancouver, B.C.

604-691-7506

dburnett@owenbird.com

It has been reported that there are over 100 ongoing internet libel cases in the U.S.A, some of which have reached the judgment stage. Several have been threatened in Canada. One has resulted in judgment against the author in Australia.

The basics are well known. In Canada, a publication to the discredit of a person is a libel, for which damages are presumed. The author, publisher and anyone who republishes the libel are all theoretically responsible unless they can establish a defence such as truth or fair comment. To that extent, an internet libel case is just another libel case. Or is it?

There is little doubt words on the internet are "publications". Courts have recognized every manner of conveying a message from one person to another, from telegraph to cartoon to pantomime, as "publication". This was illustrated in Australia, where the author of a defamatory computer message was sued personally and found liable for damages of $40,000. In the Australian case, the only defendant was the author, who was both known and within the jurisdiction.

The next potential defendant is the person or company whose computer system was used to transmit the offending message. That raises far trickier questions.

The law of libel developed at a time when roles like "author", "editor", and "publisher" were fairly straightforward. In the 1800’s it was unthinkable for a newspaper owner, either personally or through an employee, to not be aware of what statements were being published. Even in radio and television, the broadcaster has control over the technology and the employees and thereby knows or ought to know what is broadcast.

Internet technology changes all that. Someone running a computer network which is linked to the internet can "publish" millions of words without ever reading them. This is problematic in light of the basic common law principle that every "re-publisher" is liable.

Where does this leave computer networks and their administrators? Is a person operating a computer network liable for everything his computer network transmits?

In the United States, the issue of network liability has already arisen twice. In the first case, a computer network escaped liability because the network was genuinely unaware of the message on a bulletin board which was operated by an independent contractor: Cubby Inc. v. CompuServe. On the main issue of whether CompuServe was directly liable for publication of the statement, Judge Leisure said:

The second and more recent case is Stratton Oakmont, Inc. v. Prodigy Services Company, Prodigy had publicly promoted itself on the claim that it filters out offensive and inappropriate messages. The methods include content guidelines, a software filter which removes certain words and a "delete key" available to bulletin board "leaders". A user posted a message on one of Prodigy’s bulletin boards that the plaintiff company was involved in "fraud". The court found that Prodigy exercised editorial control and therefore was liable as a publisher and was not a mere data library or conduit like CompuServe.

The court in Prodigy was careful to say that it agreed with the reasoning in CompuServe regarding "mere conduits" and was merely finding on the facts that Prodigy was a publisher. However, the court did not make any finding that there was actual knowledge of the message in question. The implication is that, having assumed editorial responsibilities, such knowledge is unnecessary to a determination that Prodigy was a "publisher". That aspect of Prodigy is controversial. Some have argued forcefully that liability should only flow from actual knowledge. Others have gone further and asserted that a mere "knowledge" standard might inspire interest groups or prudes to make complaints to network operators, causing them to remove material for fear of liability, which the courts should not countenance.

An important distinction between American and Canadian common law is that in America, most libel cases require at least proof negligence by the plaintiff, which is not an element of Canadian law.. This requirement of "fault" was applied to data libraries in CompuServe, and has subsequently been applied to a television network which simply broadcast an item from elsewhere without exercising editorial control.

An approach not argued in either CompuServe or Prodigy, is the approach applied in a series of American cases regarding graffiti and other third party statements printed on the defendants’ property. In Tackett v. General Motors Corporation, the court imposed liability on the Company for failing to remove a defamatory sign from the interior of the building. The court’s reasoning was that the Company had, in the circumstances, appeared to "adopt the statement as its own". If American courts are truly concerned about avoiding a chill on free speech, the same standard may be appropriate for network operators.

American courts appear indeed concerned about protecting free speech on the internet. In A.C.L.U v. Reno, an appeal court stuck down certain provisions of the Communications Decency Act It came down forcefully against restrictions on expression, holding: "As the most participatory form of mass speech yet developed, the internet deserves the highest protection from governmental intrusion".

There is an arguable statutory "carrier" exemption in Canada. Section 31 of the Telecommunications Act purports to give the CRTC the power to limit liability of "telecommunications services". Article 16.2 of the Commissions terms of service states that telecommunication carriers are not liable for defamation arising from material transmitted over the carrier’s facilities.

However, it is doubtful whether there is any federal legislative jurisdiction to limit tort liability, and in any event, "telecommunications carriers" would likely be limited to those companies so licensed by the Commission, which does not include most ISPs.

As to common law defences, there is some authority in Canada that a "mere conduit" is not a "publisher". In The Law of Defamation, Brown states:

This is known in Canadian common law as an "innocent dissemination" defence, which has been adopted in Newton v. Vancouver, a newsstand case, and more recently in Menear v. Miguna, involving a printer contracted to print copies of a book he did not read. The Court in Menear also held that the printer had not "published", apparently accepting that "publication" requires some knowledge of contents.

This result is arguably inconsistent with the telegraph case of Kahn v. Great Northern Telegraph Co. of Canada. McEvoy, J. said it was "manifestly not desirable that any person may, by going to a telegraph office and filing a message with libelous matter in it, make that company liable to an action for libel." However, he held that giving immunity to the telegraph company would, in effect, permit people to make the company an instrument for committing libel. One can envision a similar argument about the liability of ISPs.

If ISPs are treated more like owners of a space, English courts have treated knowledge as the basis for fault. In Byrne v. Deane the proprietors of a golf club permitted a defamatory statement about the plaintiff to remain posted on the wall. Greer, L.J. said at 830:

Based on the above, Canadian courts may well draw a line between "innocent disseminators" and true "publishers" similar to the American distinction. However, the differences in jurisprudence may cause the line to be drawn in a different place, imposing a greater level of network liability in Canada.

Hopefully this fear is unfounded. In post-Charter cases, the Supreme Court of Canada has generally treated freedom of expression as one of the most important rights. It is also now clear that the courts must ensure the common law of libel properly reflects Charter values. Mr. Justice Sopinka has said publicly that the Courts should take a strong stance in favour of freedom of expression as it applies to the internet.

The global nature of the internet will give many plaintiffs the opportunity to choose one of several jurisdictions to sue. As between Canadian and American courts, a plaintiff might view Canada as a more likely forum to win on liability, but might view American jurisdictions like California as the best forum from the standpoint of damages which most favours plaintiffs. When this sort of forum shopping was attempted several years ago, an Ontario court upheld the plaintiff’s right to sue an American broadcaster (NBC) in Canada, where the program had also been broadcast, in order to avoid the requirement to prove malice to obtain judgment.

The size of the audience is important in assessing damages in any libel case. Thus, the number of emails sent, or the number of people who read a newsgroup posting or Web page will be relevant. It may be difficult in many cases to prove the number of actual readers. Also, it will make an important difference whether the readers were strangers to the plaintiff or whether they were people whose opinion of the plaintiff was important.

 The fact that everyone can be a publisher might also have an impact on damages. There may be a greater opportunity to answer and thereby mitigate a defamatory publication on the internet than in traditional media. A newsgroup ("Usenet") posting which is defamatory can be followed up with an immediate rebuttal published to the same audience. On the other hand, internet publications are increasingly taking the form of Web pages, in which the author has the "last word" and there is little or no chance for an answer.

May, 1997