Defamation, SLAPP suits, and the Internet Age

January 13th, 2012 by Paula Boutis and Tim Petrou

The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation [emphasis added]. 1

Arguably the defining feature of contemporary society, the internet makes global communication and access to information seamless in our daily routines. As devices become more mobile and content is being generated by the push of a button, it is no wonder why the internet has come to be so pervasive.

And so it poses questions as to how the law will treat defamation, words to a third party that hurt someone’s reputation, in the context of the internet.  Damages may well be much higher in this context, where words are proven to be defamatory.

The internet has challenged the courts to rethink some issues that had previously been decided. Some of these issues have been in the context of defamation. The courts have witnessed a changing landscape of claims arising due to the increase in individuals who are now able to “publish” or broadcast on the internet. Recall the world before the internet where to get anything into the public eye meant having to go to the trouble of having it successfully published in print media, broadcast on television, or publishing and distributing information through leafleting and similar strategies.

The courts have responded to the new capacity for publication and dissemination that the internet affords users. In the 2010 case, Canadian National Railway Company v. Google Inc., the court traces a series of precedents on the challenge of obtaining an injunction in response to defamation. What is reflected in this reasoning is the softening of the court on what used to be “an exceptional remedy granted only in the rarest and clearest cases.2” The courts have adapted to the internet age by recognizing “a concern for the differences between defamation by publication through the Internet and its earlier, ‘less pervasive cousins’.3

While this change in the law may be of comfort to people who have been defamed, it is also one more possible way to shut down public debate quickly through a “strategic lawsuit against public participation”, also known as SLAPP suits.

Conversely, in a recent decision of the Supreme Court of Canada, Crookes v. Newton, the court concluded that hyperlinks are equivalent to references or footnotes, and merely communicate that something exists, but do not communicate its content:  the hyperlinks are not publications.  The actual creator of the defamatory words is the person who is publishing the libel.

As courts have an easier time assessing the immediate threats of “cyber‑libel” or “internet defamation;” the defences available to a Defendant in a defamation action become more important. These defences can be distilled into four broad categories:

  1. Truth – statements that are true are by definition not defamatory
  2. Fair Comment – it’s sufficiently true so that the part of the story that is comment is “fair”
  3. Privilege – often attached to a duty to make a statement to someone with a corresponding duty to receive the information; court documents and statements in court are absolutely privileged
  4. Responsible communication on matters of public interest – the news was urgent, serious and of public importance, and the reporting person used reliable sources, and tried to get and report the other side of the story

The next time you want to include a fact in your blog, webcast, website, there are a few questions you can ask yourself to make sure you have taken the proper steps to avoid liability for defamation.

  1. Are you making a statement about a person/organization/group of people/etc.?
  2. Can you prove that the facts you communicate are true or would constitute fair comment?  Or, have you taken the necessary steps to fall into the category of responsible communication of public interest?
  3. If not, would these facts defame the party they refer to?

If there is any lingering doubt in your mind after asking these questions, check with legal counsel.

  1. Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 2001), at para. 24.02
  2. Canadian Metal Co v. Canadian Broadcasting Corp. (1975)
  3. Canadian National Railway Company v. Google Inc., 2010 at para. 13

Filed in: Defamation