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.
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