Canada: New UK Web Defamation Rules For User Content: What Canadian Website Operators Need To Know

Last Updated: February 16 2014
Article by Keith D. Rose

Most Read Contributor in Canada, September 2018

The UK Defamation Act 2013 (the "Act") came into effect on January 1, 2014.  This Act includes a variety of reforms to the UK law of defamation, including codification of the defence of "Publication on a matter of public interest"; however, for Canadian website operators, the most important change is likely to be a new defence against operator liability for third-party defamatory content.

Under section 5 of the Act, website operators now have a complete defence against liability in the UK for defamatory content posted by third parties, provided that the complainant is able to identify the poster.  Under subsection 5(4), this means that the complainant must have sufficient information to be able to bring court proceedings against the poster.

By contrast, anonymous (or pseudonymous) content is subject to what amounts to a non-mandatory notice-and-takedown scheme, defined in The Defamation (Operators of Websites) Regulations 2013 (the "Regulations").  The Regulations are complex; they attempt to define a complete procedure for responding to formal complaints.  In a nutshell, the operator must forward the notice to the poster within 48 hours.  The poster then has five calendar days to respond.

To avoid liability, the operator must remove the allegedly defamatory statement unless the original poster provides a response within that period stating that the poster does not wish for the statement to be removed and including the poster's full name and postal address.  However the poster is entitled to refuse to consent to the disclosure of that information to the complainant.

Timelines for action under the Regulations are tight.  If the operator has no means of contacting the poster, the allegedly defamatory content must be removed within 48 hours of receiving the complaint.  If the operator sends the notice to the poster and receives no reply, the content must be removed within 7 days of the operator sending the notice.  On its face, there is no provision for the operator to reject a complaint as unfounded and, under regulation 4, operators are required to respond even to formally defective complaints, albeit only by informing the complainant of the applicable requirements.

That said, it is important to recognize that, although the Regulations adopt mandatory language (e.g. "the operator must ..."), they do not define a true obligation.  This regime is a prerequisite for one specific defence, but the operator can instead rely on any other available defence.  Failure of an operator to comply will leave the operator no worse off than he or she would have been previously.  It will be open to web operators to decide on a case-by-case basis whether or not to follow the prescribed procedure in order to preserve their access to the defence.

In fact, other changes included in the Act may decrease the exposure of Canadian web operators to defamation claims in the UK.  In particular, sections 9 and 10 limit the jurisdiction of UK courts to hear defamation complaints against foreign web operators: either because they are not domiciled in the UK, a Member State of the European Community, or a party to the Lugano Convention on the one hand, or because they are not the author, editor or publisher of the statement on the other.

In the latter case, the definitions are the relatively narrow ones from section 1 of the Defamation Act, 1996.  For example, the definition of "publisher" is limited to "a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business."  This will apply to some, but not all, web operators.  Similarly, the definition of "editor" is limited to someone who has responsibility for the content or the decision to publish it.

Neither of these provisions excludes jurisdiction entirely, but each imposes a fairly high bar.  Section 9 requires that the court be satisfied that "of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement."  Section 10 requires that it is "not reasonably practicable for an action to be brought against the author, editor or publisher."  (Emphasis added.)

Furthermore, the applicable damages thresholds have been tightened in section 1 of the Act.  For a statement to be defamatory, it must be at least "likely" to cause "serious harm" to the reputation of the claimant; in the case of commercial entities, this must entail a likelihood of "serious financial loss".

Defamation in Canada

To establish a claim for defamation in Canada, the plaintiff must prove only three things:

(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;

(2) that the words in fact referred to the plaintiff; and

(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

If these elements are established on a balance of probabilities, falsity and damage are presumed.

These are relatively low hurdles; once they are crossed, the burden shifts to the defendant to prove that a valid defence applies.

In Canada, website operators have no general shield from liability for defamation claims over third-party content.  The innocent dissemination defence may be available, but it requires a high degree of passivity and ignorance.  This defence will be defeated where the operator has actual knowledge or the defamatory content, or even merely has reason to suspect its presence or has been negligent in failing to detect it.

To date there has been relatively little Canadian jurisprudence on the liability of internet intermediaries for defamation.  However, Canadian courts, including the Supreme Court of Canada, have tended to look to developments in UK law for guidance in dealing with the challenges of balancing freedom of expression with the protection against harms to one's reputation.  If this trend were to continue, it would suggest that Canadian website operators may have an easier time in the future in avoiding liability for defamation by third parties, at least where the party responsible for the defamatory statement is identifiable to the complainant.

Conversely, these developments may also suggest that, for anonymous or pseudonymous content, the Canadian risk of liability based on failure to respond to notice of defamatory content in a timely way will be further entrenched.  For instance, the UK Regulation might inform what Canadian courts consider to be a "timely" response.  Website operators should therefore ensure they have policies in place to govern how they will respond to complaints of allegedly defamatory content on their sites.

To view original article, please click here

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions