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Cyberlibel – Why your interactive website might expose you to liability

cyberlielIf you operate a website with interactive capabilities, such as a chat room, a blog, or even if you provide your readers with the option of posting their comments on your website, you may be held liable by a Canadian court for defamatory comments posted by anonymous strangers on your website.

The law of internet defamation is in a state of flux, as very few cases have reached the courts. However, the reported cases that have dealt with this issue suggest that a website operator may be held liable for internet defamation, if it had notice of the defamation but did not take appropriate and effective steps to remove the defamation in a timely manner.

In Carter v. B.C. Federation of Foster Parents Association , for example, the plaintiff alleged that defamatory statements about her were posted on a chat room controlled by the defendant. When advised by the plaintiff of the offending comments, the defendant website operator did not contact its internet service provider and request the removal of the statements from the chat room. As a result, the B.C. Court of Appeal held the defendant liable for defamation, even though it did not author the comments. In support of its decision, the Court stated:

“If defamatory comments are available in cyberspace to harm the reputation of an individual, it seems appropriate that the individual ought to have a remedy. In the instant case, the offending comment remained available on the internet because the defendant respondent did not take effective steps to have the offensive material removed in a timely way.”

In some cases, third-parties that are not the authors of defamatory statements but are the innocent publishers of such statements may rely on the legal defence of “innocent dissemination”. A publisher who has knowledge of the defamation, however, could not rely on this defence (hence the word “innocent”). In the Carter case, for example, the Court noted that the defence of “innocent dissemination” is not available to a website operator that does not take effective steps to remove the offending statements once it receives notice of the defamation.

Maanit Zemel, Associate
Miller Thomson LLP

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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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