Copyright 2010, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Intellectual Property/Information Technology Social Media Series, December 2010
The Internet provides seemingly endless opportunities for organizations to market and promote their goods and services and to build customer loyalty. An understanding of the law of defamation is vital to ensure that an organization's online activities do not result in real-world legal liability.
Most organizations have an Internet presence, such as a website, Facebook pages, and Twitter accounts. Some allow their customers to post comments or other user-generated content (UGC) on the organization's website. In taking advantage of these opportunities to engage customers, an organization must keep in mind that the law of defamation applies fully to all its online activities.
Elements of Defamation
Defamation is a civil claim available to an individual or organization where each of the following three elements are present.
1. Publication to a third party. The defamatory statement must be communicated to a person other than the subject of the statement. Practically speaking, if the statement has been posted online, this requirement will be met. The publication can take a variety of different forms including an article, a press release, an advertisement, a photo, a video, a speech or UGC. Regardless of form, the publication may give rise to liability for defamation.
A "publication" posted on a website need not be prepared or approved by the website operator to give rise to liability for defamation. All those involved in the publication or dissemination of the defamatory statement may be personally liable. What this means is that if a website operator hosts UGC, or allows a user to post a comment, article or video on the website, the operator can be held liable because the operator has been involved in its dissemination.
2. Publication about identifiable individual. A publication must be about an identifiable individual or organization to give rise to liability for defamation. One cannot necessarily avoid a defamation claim by not using a name in a publication. The question in every case is whether the person or organization can be identified in the publication by a reasonable person. Information such as an address, job title, or other publicly known characteristic can be used by a reasonable person to identify an individual or organization even without a name.
3. Publication harms reputation of identified person. A publication is defamatory if it harms the reputation of the individual or organization identified in it. This is a low threshold. For example, it is defamatory to say that someone is incompetent, dishonest, negligent, abusive, greedy or mentally unstable.
If all three of these elements are present, a defamation claim is available and the onus shifts to the person who prepared or disseminated the comment to establish one of the available defences to defamation.
Defences to Defamation Claim
A number of defences are available to a claim for defamation. Some of the defences that are likely to be relied on in the context of online defamation are summarized below.
Truth is an absolute defence to a defamation claim. If a person can prove that the published statement is substantially true in its natural and ordinary meaning, the person cannot be successfully sued for defamation.
The publisher of a defamatory statement bears the onus of proving that it is substantially true. Proving truth is often difficult, particularly if a person did not prepare or author the statement in issue, i.e., user comments or other UGC. What is generally required to prove truth is evidence of a nature that would be acceptable in a court, such as a witness to an event, a video that can be verified as authentic, a government record, or an admission by the subject of the statement.
What is not sufficient to prove truth is a rumour, even if it is widespread in the community. Nor is it generally sufficient to establish truth to say that others have made a similar statement earlier and that one is simply "repeating" what was said earlier – for example, retweeting another's tweet on TWITTER. If rumours or allegations are all that a person has to prove what he/ she has published, that person is unlikely to succeed on a truth defence.
Fair comment is a defence that is available to a claim for defamation based on the publication of a defamatory comment or opinion. A defamatory comment or opinion may be protected by fair comment, even if it is not true or reasonable, provided that all of the four following criteria are satisfied.
1. Matter of public interest. The comment or opinion must relate to a matter of public interest. What is a matter of public interest is a very broad concept. A matter is of public interest if it affects people at large so that they may be legitimately interested in what is going on or what may happen to them or to others. A person who comes forward prominently into the public realm may also be a matter of public interest.
2. Based on true facts. The comment or opinion must be based on facts in existence at the time of the publication and either set out in the publication or generally known by the public. These facts must be proven to be true. It is not good enough that the publisher believed the facts to be true.
3. Recognizable as comment. The fair comment defence protects statements of comment or opinion, not fact. To rely on this defence, the statement in issue must be presented as opinion or comment rather than fact. Use of words such as "in my opinion", "it seems to me" or "my view is" will likely be effective in identifying the statement as a comment or opinion rather than fact.
4. Honestly based on facts. To succeed on a fair comment defence, the publisher must prove that the comment or opinion is one that any person could honestly hold based on the proven facts. This is a low threshold. It is not necessary to prove that the comment or opinion is "fair" or "reasonable" because not all persons hold opinions that are fair or reasonable.
The "innocent dissemination" defence may potentially be available to protect a website operator against liability for UGC posted on its website in certain limited circumstances.
The "innocent dissemination" defence has traditionally been available as a defence to a defamation claim where a person has played a subordinate role in the publication of defamatory material if that person can prove that: (i) it did not know or suspect that it was distributing defamatory content; and (ii) it ceased distributing, or removed, the defamatory material upon being put on notice of the alleged defamation.
In the context of the Internet, it has been argued that the innocent dissemination defence is available to protect against a defamation claim relating to UGC on a website where: (i) the website operator does not review comments prior to posting on the website; and (ii) the operator removes the UGC immediately upon being put on notice that it may be defamatory.
The two requirements for relying on the innocent dissemination may appear easy to satisfy in practice but carry with them significant reputational risks. Absent review of user comments prior to posting, the operator loses control of what content appears on its website, which is commercially risky. Further, removing user comments too quickly may expose the operator to complaints of censorship. Because of these risks, many organizations that open their websites to user comments choose to forego the steps necessary to qualify for the innocent dissemination defence, even if it might be available.
There is no statutory recognition of the innocent dissemination defence as there is in the United States' Communications Decency Act. The British Columbia Court of Appeal appears to have implicitly accepted this defence in Carter v. B.C. Federation of Foster Parents Association, which related to defamatory user content in a forum or chatroom. However, the availability of the innocent dissemination defence to protect against defamation claims arising from user comments has not yet been recognized in other provinces.
If a business uses a website, a blog, a social networking website such as Facebook or Twitter , or any other social media to market its goods or services, it is vital that it do so with knowledge of the law of defamation. Without such knowledge, a promising marketing opportunity can quickly turn into a costly and timeconsuming defamation claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.