Competing Interests and the Courts As we have seen by the abundance of literature, in a cybersociety, reputation and freedom of expression are becoming increasingly important. Given the laws’ growing interest, protection of reputation is rapidly gaining importance in a technological society. As stated by John Manley, Internet commerce shall total an estimated six hundred and fifty three billion dollars for the year of 2002 with an estimated share of thirteen billion dollars coming towards Canada(although the Canadian Government has plans in motion to raise this amount to approximately twenty billion dollars).(23) Many companies have closed up their physical shops in favour of a purely Cyberspace existence. For these businesses, protection of their reputation on the Internet is paramount. Protection of reputation seems to be gaining prominence over the freedom of expression. As stated in the landmark decision of Hill v. Church of Scientology the Supreme Court of Canada stated that defamation laws are a reasonable limit on free speech in Canada, Cory J. wrote that: Although much has been very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws... Democracy has always recognized and cherished the fundamental importance of the individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited... Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all of the Charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society...The publication of defamatory comments constitutes an invasion of the individual's personal privacy and is an affront to that person's dignity. The protection of a person's reputation is indeed worthy of protection in our democratic society.... (24) In Canada, protection of reputation is facilitated by each province. Liability for publication of a defamatory statement extends to all those who participate in its dissemination; in the example of a newspaper, the editor, the section head, the owner of the newspaper and even the person who participates in its distribution could be held liable. Any individual who knows or should know of the defamatory nature of the statements, or has a degree of control over the dissemination of the statements, is potentially liable.(25) We shall first turn our attention to Primary Publication Liability and then to Secondary Publication Liability for the ISP. Primary and Secondary Publication Liability A defendants liability depends on the role taken in disseminating an allegedly defamatory statement. As a result, status falls into two categories : primary or secondary. The importance difference between the two is that primary publishers play an active role in dissemination while secondary actors play a passive role.(26) Primary publishers include radio broadcasters, and newspaper printers and editors. The primary publisher incurs liability for defamation when publishing a statement with the possibility of knowing it is defamatory. However, secondary publishers such as book stores, libraries do not possess the same opportunity to know the content of the material disseminated. A.) Primary Publication Liability i.) E-mail The impact of E-mail has been profound in the age of the Internet. Unlike conventional correspondence which makes way for time to proof and re-draft, e-mail messages can be typed and sent half way across the world within minutes. Transmission is virtually instantaneous and as many of us have learned, irreversible. As noted by Lilian Edwards, e mail correspondence is said to be analogous to the spoken conversation for its habitual users. E-mails are hasty, ungrammatical, rash and also tend to lead parties into saying things which they would not normally commit to writing - let alone widely publish - nor say in personal interaction with the other party.(27) Of extreme weight on Cyberlibel are the psychological implications of e-mail on its users. Psychologically, electronic interaction combines a deceptive distance - sitting safely behind a private terminal - with an equally deceptive intimacy. Studies have shown that during e mail correspondence there is a lack of body language, eye contact or spoken cues which - as they would in a verbal conversation - prevent the user from making inappropriate statements.(28)This inevitable results - as we shall examine the caselaw - in people sending e-mails resulting in libel actions. Is there liability for defamatory statements sent via e-mail? The answer is yes. To date, actions for libel based on e-mails launched in Australia, England and the United States and have had varied results. In the case of Rindos v. Hardwicke No. 940164, March 25, 1994 (Supreme Ct. of West Australia) (Unreported) the Court held that the academic competence of Rindos was defamed when he was accused of misconduct in a message posted to an Internet news group. The publisher of the message was held liable for damages in the significant amount of $40,000.00. The court did not judge it appropriate to treat the Internet context as different from already known means of communication, and recognized the author's responsibility for the defamatory statements transmitted in a discussion group.(29) As noted by Potts and Harris at http://www.cyberlibel.com, an action by Dr. Laurence Godfrey of CERN, Geneva, Switzerland, for libel on a Usenet located in England, was settled with the plaintiff accepting the defendant's payment of money into court and an action for an e-mail libel by an American businessman against a defendant journalist was settled, in the case of Suarez v. Meeks. Similarly, in a Canadian decision concerning defamation in cyberspace, an interlocutory decision was handed down in the Ontario Court of Justice (General Division) in the unreported case of Egerton v. Finuncan (May 25, 1995), [1005] O.J. No. 1653. A college professor's supervisor, Finuncan, had sent Egerton an e-mail message setting out a number of concerns regarding Egerton's performance resulting in his termination. However, the message was not sent only to Egerton, but the entire faculty. Mr. Egerton then commenced a wrongful termination action against Mr. Finuncan and this interlocutory decision determined (at paragraph 16) that as a result of, "...the manner in which the allegations against Mr. Egerton were published to other persons rather than being communicated to Mr. Egerton on a confidential basis... ." The claim of defamation could go to trial as a separate and distinct action. Another characteristic of e-mail is the ease with which messages can be forwarded. As under the libel law of many countries - including Canada - without a valid defence a re publisher is just as liable as the original publisher. For example, Party A sends a defamatory message about Z to B who then sends it on to C . This provides Z with the option of suing the party in the line of transmissions which possesses the deepest pockets. Also in situations where A has been using a pseudonym on the internet those known parties who were involved in the transmission of the message can be held liable. ii.) Newsgroups and the Usenet Newsgroups are a forum for discussion upon which subscribers post their comments, collectively, known as the Usenet. In a recent article, Edwards noted that there are approximately 14,000 Usenet newsgroups subscribed to by millions of users, located in every country where there is Internet access and that approximately four million articles are available at any particular time.(30) Therefore, once a comment is posted to a newsgroup it has the ability to be read almost instantaneously in hundreds of jurisdictions by thousands of people. This area of Internet has enormous libel ramifications and is a prime source for slander of goods and corporate cyber-smears. Quite contrary to the idea of the Internet as a mass distributor of information a libel juror might reasonably question how seriously a plaintiff's reputation has been harmed - in comparison with the widespread damage caused by a broadcast through a printed libel - by the relatively narrowcast bulletin board. Quite the contrary, given the specialised nature of discussions taking place on bulletin boards, such scepticism would be misplaced. Notably, in the academic and economic communities, bulletin boards are often the chosen method of correspondence. Scurrilous bulletin board messages, even if not widely disseminated by conventional mass media standards, may be nicely targeted to achieve maximum damage to a professional or business reputation.(31) B.) Secondary Publication Liability We have looked at individual; however, secondary publication is equally significant. There are many situations where the ISP may be held liable for the defamatory materials of others. As previously noted, those who take part in the original publication and distribution of defamatory materials may be liable to the plaintiff. Given the absence of Canadian law on Cyberlibel, in order to determine the future effects of the international caselaw - which will be later discussed - we must set the backdrop by comparing Cyberlibel and the Internet to analogous realspace situations. Analogous Examples i.) HyperLinking by Analogy In Lindley v. Delman 25 P. 2d 751 (1933) the showing of a libelous letter and issuance of a request to others to visit a place where the libelous statements could be viewed was held to constitute a publication under the definition of defamation. In Lawrence v. Newberry (1891), 64 L.T. 797 a letter to a newspaper referring to a speech containing defamatory content which was published elsewhere attracted liability to the defendant. Similarly, in Hird v. Wood (1894), 38 S.J. 234 (CA) the defendant was merely sitting beside a placard containing defamatory remarks and drew the attention of others to it which resulted in a finding of liability. While these cases are significant in age, they serve to stand for the proposition that simply directing others to defamatory materials may also result in publication liability. Therefore, hyperlinks - upon which the Internet is built - from one HTML document to another could attract liability. However, as noted by Takach, in the U.S. case MacFadden v. Anthony, 117 N.Y.S. 2d 520(Sup. Ct. N.Y. 1952), no responsibility was given to a radio commentator who made an on-air reference to a libelous magazine article. The court concluded that the commentator did not repeat the libel verbatim or in substance, and the words which were actually broadcast were themselves not libelous. ii.) Bulletin Boards by Analogy In Bryne v. Deane [1937] 1 K.B. 818 (C.A.) members of a golf club placed a poster containing a defamatory poster on the club’s wall. The defendants, the proprietors of the club, were held liable since they had knowledge of the poster and the power to remove it. Their failure to do so constituted publication. The Court of Appeal held that the failure to remove the defamatory material amounted to publication where its removal was “simple and easy”. Thus, by analogy, it can be argued that postage of defamatory information within a private password protected area of a web site would not relieve participants from liability. However, as noted by Dietrich, the fact that the material was posted in a non-public place may affect the damage award available to the plaintiff.(32) iii.) Bookseller or Library by Analogy In the case ofSun Life Assurance Company of Canada v. W.H. Smith and Son Limited(1933), 150 L.T. 211 (C.A.) a retail book dealer claimed that the high output of its stores made it impossible to monitor the contents of the sold product. The Court; however, held that since the managers of the retail outlets routinely read the posters as they were being put up either the managers or head office personnel should have screened the contents for libelous material. The implications of this decision are further discussed in the CompuServe decision in the next section dealing with liability. Would liability then be attached to any ISP who screens or has the potential to screen content? In the case of Vizetelly v. Mudies Select Library Limited,[1900] 2 Q.B. 170 a circulating library made a conscious decision not to screen books because, "it was cheaper for them to run an occasional risk of an action than to have a reader." It resulted in a finding of liability for publishment of defamatory materials. The potential Internet ramifications of this decision could stand for the position that the ISP could be required to take some form of proactive steps to screen their online sites from the defamatory materials.(33) However, we shall look at caselaw which both contradict and support this analysis. 23. Manley, supra note 6. 24. [1995] S.C.R. 1130 at 1175-1179 25. Michael G. Crawford, The Journalistic Legal Guide, Second Ed, (Agincourt, Ontario: Carswell, 1990) at 16. 26. Robert Charles, "Computer Bulletin Boards and Defamation:Who should Be Liable? Under What Standards?," (1987) 2 J.L. & Tech, 121, at 131. 27. Edwards, supra note 9. http://www.law.ed.ac.uk/c10_main.htm 28. TA Cutera, "Computer Networks : Libel and the First Amendment, "(1992) Computer Law Journal 557 at 559-560 29. Trudel, supra note 13. http://strategis.ic.gc.ca/SSG/it03235e.html 30. Edwards, supra note 9. http://www.law.ed.ac.uk/c10_main.htm 31. Trudel, supra note 13. http://strategis.ic.gc.ca/SSG/it03235e.html 32. Dietrich, supra note 14. http://www.SmithLyons.ca/it/ecom 33. Dietrich, supra note 14. http://www.SmithLyons.ca/it/ecom Introduction - Defamation - Defences - Cyberlibel - Liability - Conclusion - Reference