By Richard Stobbe
While our last post dealt with the creation of photographs and other works of authorship by primates, robots and divine beings, this story is a little more grounded in facts that you might see in the average work day.
When an employee takes a photograph, who owns copyright in the image?
In Mejia v. LaSalle College International Vancouver Inc., 2014 BCSC 1559, a BC court reviewed this question in the context of an employment-related complaint (there were other issues including wrongful dismissal and defamation which we won’t go into). Here, an instructor at LaSalle College in Vancouver took a photograph, and later alleged that the college infringed his copyright in the picture after he discovered that it was being used on LaSalle’s Facebook page.
The main issue was whether the picture was taken in the course of employment. The instructor argued that the photograph was taken during his personal time, on his own camera. He tendered evidence from camera metadata to establish the details of the camera, time and date. He argued that s. 13(3) of the Copyright Act did not apply because he was not employed to take photos. He sought $20,000 in statutory damages. The college argued that the photo was taken of students in the classroom and was within the scope of employment, and copyright would properly belong to the college as the employer, under s. 13(3) of the Act.
The court, after reviewing all of this, decided that the instructor was not hired as a photographer. While an instructor could engage in a wide variety of activities during his employment activities, the court decided that “the taking of photographs was not an activity that was generally considered to be within the duties of the plaintiff instructor, and there was no contractual agreement that he do so.” It was, in short, not connected with the instructor’s employment. In the end, the photograph was not made in the course of employment. Therefore, under s. 13(1) of the Copyright Act, the instructor was the first owner of copyright, and the college was found to have infringed copyright by posting it to Facebook.
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The use of social means to engage in defamation is nothing new. Indeed, defamation requires the very social element of publication. Social media - Facebook pages or posts, tweets, blogs and online comments - merely make defamation easier and more pervasive.
Canadian courts have struggled to balance the interests of free speech with the interests of individuals who wish to challenge and find redress for defamatory statements. A recent Ontario case has framed the issue as follows:
“There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.” Manson v. John Doe , 2013 ONSC 628 (CanLII),
The test laid out by the Supreme Court of Canada (Grant v. Torstar Corp., 2009 SCC 61 (CanLII)) is as follows: In order to establish a claim for defamation a plaintiff must establish that:
a) the impugned 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 in fact refer to the plaintiff; and
c) the words were published, i.e., that they were communicated to at least one person other than the plaintiff.
In Manson, the court ordered the defendant to pay damages of $100,000 plus aggravated damages of $50,000 and costs. However, the defenant remains anonymous.
Another recent decision in Baglow v. Smith, 2012 ONCA 407 (CanLII), hints at the court’s willingness to permit parties to engage in a heated online political debate, without crossing the line of defamation. In that case, the court observed: “Commentators engaging in the cut and thrust of political discourse in the internet blogosphere can be fervent, if not florid, in the expression of their views.” In the lower court, the statements made in this “cut and thrust” were determined not to constitute defamation. However, on appeal, the court decided the matter was suitable for a full trial and overturned the lower court findings. This is one case to watch.
Related Reading: ipblog’s Defamation Archive
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- Online Defamation: Injunctions Against Google in Canada
- SCC Defamation Decision
- Update: Canadian Online Defamation & Hyperlink Case
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How easy is it to get an injunction against Google? In Nazerali v. Mitchell, a man complained of online defamation, and obtained a preliminary injunction against the author of the allegedly defamatory content, the hosting company (Nozone, Inc.), the domain name registrar (GoDaddy) and Google. The Court ordered the injunction, which included the order prohibiting Google “from permitting the Google.com or Google.ca search engines from returning any search result from www.deepcapture.com.” Essentially this results in shutting down the (allegedly) offending website, since the court considered it ”impossible surgically to eliminate just the offending phrases”. While this seems to be a dramatic result, considering it was obtained on an ex-parte basis (the other side did not appear at the hearing), it is not without precedent in Canada.
In Canadian National Railway Company v. Google Inc., 2010 ONSC 3121 (CanLII), the court issued an interim injunction requiring Google to remove a blog hosted on Google’s Blogspot platform.
The injunction in Nazerali v. Mitchell was time-limited and is set to expire tomorrow (December 2).
Hat tip to Alan Macek for highlighting this case.
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This is a story we’ve been following for several years (see our past posts here: Update: Canadian Online Defamation & Hyperlink Case). It’s based on an allegation of online defamation brought by businessman Wayne Crookes, which ultimately focussed on one issue. To succeed in an action for defamation, a person must prove on a balance of probabilities that the defamatory words were “published”. If you hyperlink to defamatory content, can you be liable for “publishing” that defamatory content?
In a decision this week in the case of Crookes v. Newton, 2011 SCC 47, the country’s top court has upheld the lower court decisions, and decided that there was no publication of the defamatory content in this case. A hyperlink, by itself, is not “publication” of the defamatory content to which it refers. To decide otherwise would ”seriously restrict the flow of information on the Internet and, as a result, freedom of expression,” according to the court.
Some in the court pointed out that a blanket statement that hyperlinks can never constitute publication is too broad, since links can take many forms. The consensus is that a mere general reference to a website is not enough to find publication. Anyone who links to salacious gossip can now breathe a little easier.
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The Supreme Court of Canada (SCC) is currently considering its verdict in the long-running case of Crookes v Newton The BC Court of Appeal’s 2009 decision (in Crookes v. Newton 2009 BCCA 392) held that Mr. Newton was not liable for hyperlinks to defamatory content. In short, if a person merely hyperlinks to a defamatory site, that act alone does not make that person a “publisher” of the defamatory material found at the hyperlinked site. Mr. Crookes appealed that decision to the SCC. Oral arguments in the case were heard this week, and a decision is expected soon. With luck, the ruling will clarify the law on liability for hyperlinks - something that has far-reaching consequences for use of the internet in Canada.
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When can an internet user remain anonymous? It depends….
As an update to our recent post about Mosher v. Coast Publishing Ltd., 2010 NSSC 153 (where the identity of anonymous comment-writers was ordered to be disclosed), the recent decision in Warman v. Wilkins-Fournier,  ONSC 2126 (S.C.J.), took an opposite view.
The recent Wilkins-Fournier decision was an appeal of an earlier decision (See: Online Defamation Update) in which the court ordered the disclosure of all personal information, including name, email and IP address, of eight anonymous posters in a defamation case. In this new decision, the court reviewed privacy rights and freedom of expression issues, and overturned the disclosure order. The court indicated that disclosure should not be automatic, and the plaintiff must first demonstrate a prima facie case of defamation before the disclosure of personal identities is ordered. Interestingly, the court compared this situation to the one in BMG Canada Inc. v. John Doe, where the recording industry sought the disclosure of anonymous alleged copyright infringers.
Calgary - 09:00 MTNo comments
If someone engages in online defamation, online copyright infringement or any number of other illegal acts on the internet, the first question is who is actually committing the act in question? One of the main issues facing litigants in Canada is the identity of anonymous actors who are shielded by mysterious usernames, aliases or cryptic email addresses.
In a recent decision in Nova Scotia, a judge ordered Google and a local paper to disclose the identity of individuals who are alleged to have posted defamatory statements on a local website. The judge declared: “The court doesn’t condone the conduct of anonymous Internet users who make defamatory comments. They, like other people, have to be accountable for their actions.” The decision flies in the face of other Canadian court decisions where judges have erred on the side of caution by protecting the identity of online users.
In an online defamation case on the other side of the country, the BC Court of Appeal decision in Crookes v. Newton (see our previous post) is heading to the Supreme Court of Canada (SCC). Leave to appeal was granted earlier this month and the decsion of the SCC should clarify this area of law, particularly the extent of liability for hyperlinks to defamatory content.
Calgary - 08:00 MST1 comment
Three recent decisions tackle this issue:
In the US decision of Cornelius v. DeLuca, 2009 WL 2568044 (E.D. Mo. Aug. 18, 2009), bodybuilding.com (an online retailer of fitness and bodybuilding products), was sued over the content of certain comments posted to the bodybuilding.com website. The plaintiffs complained that the comments were designed to harm the plaintiffs’ business. This decision considered whether the operator of bodybuilding.com should be liable for those user comments. In the US, there is a standard defence for website operators (Section 230 of the Communications Decency Act), but that defence can be punctured if the operator was in a “conspiracy” relationship with the persons posting the comments. The court found no such conspiracy and so the website operator was found to be not liable, and the claim was dismissed.
In Canada, in the decision this month in Warman v. Lemire 2009 CHRT 26, a Human Rights Tribunal found that a site operator should not be liable for comments if the operator had no notice or knowledge of the comments. This is a “hate speech” case, not a corporate defamation case as in the Cornelius v. DeLuca decision above. Also, it’s worth noting that this comes from a Human Rights Tribunal, not a Canadian court. The decision maker said: “I do not see how liability for hate messages posted by anonymous or pseudonymous third parties should be ‘attributed’ to a message board operator if it has not been established that he or she has notice or knowledge of these postings.” Several comments and articles were reviewed, and in one of the cases, the impugned article was posted or uploaded by the administrator or webmaster. In that instance the operator was found to be responsible. However, the operator escaped punishment on constitutional grounds. The decision is expected to be appealed.
The BC Court of Appeal’s decision last week in Crookes v. Newton 2009 BCCA 392 considered liability for hyperlinks. In that decision (one of many generated by Mr. Crookes’ lawsuits), the Court of Appeal agreed that Mr. Newton was not liable for hyperlinks to defamatory content. The Court reasoned that “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”. In other words, if someone merely hyperlinks to a defamatory site, that alone does not make that person a “publisher” of the material found at the hyperlinked site. This will help clarify the liability of website hosts or operators, since user comments which merely link to defamatory or other offending material, will not attract liability.
Calgary - 09:15 MST
Updated Sept. 22 16:42 MSTNo comments
Online defamation has always been about two issues: there’s the legal question of whether the online comments are “defamatory” according to the standard legal tests, but before you get to that stage, you need to know who is writing the defamatory comments.
That’s often where the inquiry starts and stops. Since online anonymity is so hard to pierce, the identity of the poster of defamatory comments is never known, and the person who is defamed has no-one to sue for defamation. A court order on Monday has shed some light on the process of getting over that anonymity hurdle. In the case of Cohen v. Google Inc., Index No. 100012/09 (N.Y. Co. August 17, 2009) (Madden, J., J.S.C.) (related story), a Canadian model has obtained an order compelling Google to disclose the identity of the author of the alleged defamatory comments. “Pre-complaint disclosure” is not new, but this case has attracted attention because of the elements: a New York model, Google, and blogging.
In Canada, similar orders have been made in online defamation cases. In a 2009 decision in the case of Warman v. Fournier, the Ontario Superior Court of Justice ordered the disclosure of all personal information, including name, email and IP address, of eight anonymous posters in a defamation case.
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Last Friday, the Supreme Court of Canada upheld the decision in Fromm v. Warman, to award $30,000 in damages for internet defamation. The judgment of the Court of Appeal for Ontario, 2008 ONCA 842, handed down in December, 2008 [Link to Court of Appeal Decision] was upheld. Warman brought an action against Fromm for defamatory postings on various internet websites. Fromm took the position that the comments were “fair comment” on matters of public interest. The court upheld the finding that the postings were defamatory.
Calgary - 09:30 MSTNo comments
We have previously commented on the series of defamation lawsuits commenced by Wayne Crookes. These lawsuits are resulting in court judgements which have established some guidance in this emerging area. The latest decision, Crookes v. Wikimedia Foundation Inc., 2008 BCSC 1424 has established that linking to defamatory content does not, in itself, amount to publication of that content. In other words, the publisher of an article which links to the defamatory content, without reproducing it, is not liable for the defamation. The court stated that “the mere creation of a hyperlink in a website does not lead to a presumption that persons read the contents of the website and used the hyperlink to access the defamatory words.” And the court went on to say that “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”.
The court’s analysis refers to evidence of whether anyone linked to and read the defamatory content, leaving open the question of whether different facts would have resulted in a different conclusion. Liability may arise where there is ample evidence that numerous readers used the link to access the defamatory content, or in a situation where the linked content is used to refer directly to the defamed person. The court speculated that if an article states “the truth about [the defamed person] is found here” and “here” is hyperlinked to the specific defamatory words, then the publisher of the article may be liable.
There was also a recent defamation decision in Ontario, giving rise to $50,000 in damages for online defamation.
A third decision, in Manson v. Moffat,  O.J. No. 1697, resulted in a damage award of $20,000 for internet libel, and an injunction was issued against the U.S. defendant. The case arose from false statements posted online relating to the plaintiff’s patent.
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What happens when a resident of B.C. posts defamatory comments on a usenet group about a resident of Australia?
In this case, two men were engaged in a protracted and ugly name-calling session in the usenet group “alt.suicide.holiday”, described as a discussion forum for persons who were feeling depressed and suicidal. In Griffin v. Sullivan, 2008 BCSC 827, a BC court has reviewed the issues around online defamation and breach of privacy. The decision resulted in an award of damages for defamation of $150,000 and an award of $25,000 in damages for breach of privacy as well as a permanent injunction against the B.C. man.
The claim for breach of privacy arose when the B.C. man published the name and address of the plaintiff Australian man. Names and addresses are often considered public information; however, the court found that the disclosure constituted breach of privacy (under the very seldom-used B.C. Privacy Act) since the Australian man had previously maintained his anonymity in the usenet group, and group members often shared sensitive information about themselves.
The other interesting element of the decision is that the court did not review the fundamental question of whether anyone in B.C. (or anywhere else in Canada) actually read the defamatory postings. In Crookes v. Yahoo, 2008 BCCA 165, the Court of Appeal made it clear that merely alleging that something has been posted on the internet is not, on its own, sufficient to show that publication can be presumed, as we reported earlier.
Names can never hurt you… but they can result in significant damage awards.
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A disgruntled ex-employee registers the dot-com version of the employer’s dot-ca domain name. Then, just before leaving on vacation out of the country, the ex-employee directs the dot-com domain name to a gay porn site. The employer sues for damages.
In a recent judgement (Inform Cycle Ltd. v. Draper, 2008 ABQB 369), the Court has awarded damages against the ex-employee for passing-off and defamation, to the tune of $15,000.00. The case is interesting for a few reasons: first, it is one of the few decisions dealing with both online corporate defamation (defamation of business reputation on the internet) and domain name issues. And it is interesting for the summary way in which the Court concluded that damages were appropriate.
In the B.C. case of Crookes v. Yahoo, the Court disposed of an online defamation claim by reasoning that there was no evidence that the alleged defamatory material was accessed by someone in B.C. “Publication is an essential element for an action in defamation,” said the judge. “In this case … [t]here is no evidence anyone read the material in British Columbia.”
Contrast that with the analysis in the Inform Cycle case: “There is no record of the number of people who were forwarded to the gay pornographic website…the people referred to the ‘.com’ site over that 16 day period were people who had made an error by choosing ‘.com’ instead of ‘.ca’. We do not know how many people made that error. We do not know how many actually thought that the referral to the porn site was deliberate rather than a computer or internet glitch. We do not know if anyone, or how many, actually believed that Inform was involved in the porn site or business.” (emphasis added) Despite those apparent gaps in the evidence, the Court had no problem concluding that defamation had occurred, and that damages were appropriate. The difference might be explained (at least partly) by the fact that the alleged defamatory comments in the Crookes case were made in a members-only discussion forum. It’s likely that the nature of the site where the domain name was directed also has something to do with it. It is clear that further clarity on these issues is required.
Calgary - 15:30 MSTNo comments
This is the story of online defamation allegations levelled against Yahoo, Google, Wikipedia, MySpace and others by a B.C. man who says he was defamed by certain online postings. We have been following this defamation case since it was initiated (See:earlier post ).
The BC Court of Appeal has now dismissed the appeal relating to Yahoo. In Crookes v. Yahoo, 2008 BCCA 165, the Court has made it clear that merely alleging that something has been posted on the internet is not, on its own, sufficient to show that publication can be presumed. In other words, just because it was online, doesn’t mean anyone read it. This is important because “publication” must be proved in order to win a defamation case. If there’s no publication, then there can be no defamation. In the case of newspapers and broadcasts, publication is presumed. The BC Court of Appeal has made it clear that this presumption does not always apply with the internet.
In this case, the allegedly defamatory comments were made on a members-only site, and the court said: “In Wiebe [Wiebe v Bouchard, a 2005 defamation case] significance was attached to the fact the libellous statements were posted on the internet nationwide as well as being made available in the main public library in Victoria. But they were posted on a Government of Canada website and, as was noted, were made available to everyone in the country who had a computer. By contrast, the statements that are the subject of Mr. Crookes’ action were posted on a website with restricted access that was not available to the public. The basis for any presumption that might be said to have been recognized in Wiebe does not exist here. I do not consider the mere fact a statement was posted on a website with the kind of restricted access there was in this case supports the presumption it was read by anyone in British Columbia.”
This is a helpful step forward in clarifying online defamation law in Canada.
Calgary - 10:45 MSTNo comments
There have been a string of cases in Canada dealing with defamation in the internet context, providing useful guidance in this area. It seems that old fashioned defamation in hard-copy newspapers will remain a quaint memory from the last century. The last case we covered was from British Columbia - the latest decision comes out of Ontario.
In Warman v. Fromm and Canadian Association for Free Expression Inc., (Ontario Superior Court of Justice - Case No. 04-CV-26550SR), the court reviewed a string of defamatory postings and rejected the defence of fair comment. The court awarded general and aggravated damages totaling $30,000, and ordered the defendants to post full retractions within 10 days.
Calgary - 10:35 MSTNo comments
In our earlier post, we highlighted a defamation lawsuit brought against Google, Wikipedia, Yahoo, MySpace and others by a B.C. man who alleged he was defamed by certain online postings. Multiple lawsuits have been filed. This week in Crookes v. Yahoo, 2007 BCSC 1325, a B.C. court dismissed the case against Yahoo, a California-based company.
The court disposed of the claim by reasoning that there was no evidence that the alleged defamatory material was accessed by someone in B.C. “Publication is an essential element for an action in defamation,” said the judge. “In this case … [t]here is no evidence anyone read the material in British Columbia.”
As a result, the court did not even consider the other issues about whether California law applied under the terms applicable to the online services, nor about the wider issues relating to liability for online content.
Calgary - 13:35 MST2 comments
On April 10th, we posted an article about Online Defamation. This week, a very interesting new online defamation lawsuit was launched in Canada catching two high-profile defendants: Blogspot.com, Google’s free blog-hosting site, and Wikipedia, the online encyclopedia.
The suit was filed by Wayne Crookes who alleges that he suffered defamation at the hands of anonymous posts to those sites. The question will be whether the operators of the sites can be held liable for defamatory postings. As we noted in our earlier post, online content-providers such as Google and Wikipedia cannot take advantage of the traditional protections provided to newspaper publishers or broadcasters. The law in Canada could use some further clarity in this area, and this case may provide it.
Calgary - 09:50 MST1 comment
When I wrote an article about online defamation in 2005, MySpace and YouTube were still relatively unknown. The prospect of a highschool principal suing former students for defamation would have been remote. Now, it’s a reality.
In Canada, the issue of internet defamation came back into the spotlight when Sharman Networks CEO Nikki Hemming filed a libel lawsuit against p2pnet last year. The suit will be interesting to watch as it may clarify when ISPs and hosts of online discussion forums will be liable for publication of defamatory content.
In the 2003 case of Bahlieda v. Santa, the Ontario Court of Appeal dealt with a complaint of online defamation. The lower court initially decided that the online material qualified as a ‘broadcast’ (similar to a television or radio broadcast) for the purposes of the provincial Libel & Slander Act. Under that law a defendant can deflect a complaint if it is not brought within six weeks. On appeal, the court overturned this decision, allowing the complaint to proceed.
In Weiss v. Sawyer, a defamatory letter was published in both the hard-copy paper and online version of a newspaper. Both the paper and the online versions were treated as ‘newspapers’ for the purpose of the provincial libel and slander law, and the time limits applied. The complaints were dismissed because they were brought outside those strict time limits. However, an email transmission of the same material was not considered a ‘newspaper’ or ‘broadcast’ under the legislation. The complaint in connection with the email was allowed to proceed.
ISPs and online content-providers probably can’t take advantage of the protections afforded to newspaper publishers or broadcasters unless the material appears in an online version of a traditional newspaper or broadcast.
Calgary - 11:45 MSTNo comments