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Of cyberbullying and Robin Williams: Legal liability for defamatory or offensive comments

No matter what anybody tells you, words and ideas can change the world.” – Robin Williams (1951- 2014).

Every so often a story breaks out in the media that highlights the problem of cyberbullying and cyberlibel. The recent tragic death of the legendary actor and comedian Robin Williams is one such example. Mr. William’s suicide was not a result of cyberbullying. Rather, it resulted in cyberbullying – of Mr. William’s grieving daughter, Zelda Williams. Apparently, shortly after Mr. Williams’ death, some Twitter users posted cruel tweets on Zelda Williams’ Twitter account, including photo-shopped photographs of Mr. Williams’ head on a corpse. Zelda Williams responded in the only way she could – by announcing that she is “taking a break from social media” and closing down her Twitter account.

Despite their obviously offensive content, Zelda Williams could not legally force Twitter to take down the postings. In the US, website hosts and Internet Service Providers (“ISPs”) enjoy statutory immunity from legal liability for defamatory or offensive comments that are posted on their websites. Thus, victims of cyberbullying and cyberlibel are often at the mercy of companies such as Twitter or Facebook, and the decision to remove the offending content is within those companies’ discretion. In Zelda Williams’ case, Twitter responded positively and removed the offending comments, after the issue went viral (indeed, Twitter went as far as to change its policies and may now “remove imagery of deceased individuals in certain circumstances”.)

In Canada the situation is somewhat different. ISPs do not enjoy statutory immunity from liability. Rather, there is some legal precedent that finds ISPs liable for publication of defamatory content, if that content was brought to their attention and they did nothing about it. The difficulties that Canadian victims of cyberbullying face, however, are due to the fact that most ISPs are located in the US and therefore cannot be sued in the US. Moreover, even though Canadian residents can sue these ISPs in Canada, it is questionable whether such Canadian judgments can be enforced against the ISPs.

Nevertheless, if a Canadian resident is being victimized online, they should not assume that there is nothing they can do about it. Ignoring the problem (or, like Zelda Williams “taking a break from social media”) will not make it go away. Indeed, the longer the victim waits, the harder it is to remove the offending content from the web. There are several legal and practical steps that a Canadian can take to deal with the problem – I have listed those in previous postings (click here and here). I recommend that victims of cyberlibel and cyberbullying review those tips and obtain advice from legal counsel with expertise in this area.

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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