By Richard Stobbe
Defamatory content on the internet?? Throw a metaphorical rock into the ether and you’ll hit something that meets the definition of defamatory content. In order to establish a claim for defamation, a plaintiff must establish that:
(a) the words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a “reasonable person”;
(b) the words refer to the plaintiff; and
(c) the words were published, in the sense that they were communicated to at least one person other than the plaintiff.
In Canada, this is the same basic test whether the medium is an old-school print newspaper, a neighbourhood newsletter, a personal blog, or an online comments section. While defamation can be difficult to establish, the law appears to have settled on a few rules around linking to allegedly defamatory content. Two recent U.S. cases addressed this issue, and U.S. commentators have even pointed back for guidance to a watershed Canadian case from 2011 (which we wrote about here).
In Life Designs Ranch Inc. v. Sommer the court reaffirmed that linking to defamatory content does not, by itself, constitute a publication of that content: “…a URL is not qualitatively different from a mere reference. Therefore, we hold Mr. Sommer did not republish allegedly defamatory material when he posted on his website: ‘For more info click or cut and paste the link ….’ ”
Going one step further, what if the link is more than just a link? The court in Slozer and Donches v Slattery reviewed a situation where the defamatory content was linked in a post, and then that post was “Liked” on Facebook by the defendant. The court said: “…by providing a link to the challenged posting, without reiterating the content of that posting did not initiate a republication. Her motivations and her designation of the link with a “like” as alleged by Appellants, is not equivalent to a reiteration of the defamatory content as to constitute republication.”
Calgary – 10:00 MTNo comments