This post by my colleague Dan Carroll provides a great review of the many issues in online defamation, including civil and criminal liability. 

Related Reading:

• Online Defamation: Injunctions Against Google in Canada
• SCC Defamation Decision
• Update: Canadian Online Defamation & Hyperlink Case

Calgary – 07:00 MDT

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, [2010] 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 MT

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 MST

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 MST

Maclean’s magazine (macleans.ca) interviewed Richard Stobbe, lawyer with the Technology & IP Group, for an article on defamation and internet law. The article takes a look at the “dark side” of anonymity on the internet and the state of the law in Canada.

Calgary – 9:45 MST

Every once and while a story comes along that seems to capture an essential quality of the times. This is one of those stories: In December, CNET News.com interviewed Second Life entrepreneur Anshe Chung, the virtual identity of real-life entrepreneur Aillin Graef.

The interview took place in CNET’s virtual Second Life studio in front of dozens of virtual audience members. Video taken during the interview was sabotaged by digital hecklers who harrassed both Anshe Chung and her real-life owner, Ailin Graef. Afterward (like any other video taken in the real world), a video of the harrassment was posted on YouTube.  Real-life company Anshe Chung Studios filed a complaint against YouTube, claiming that real-life Graef’s copyright in the virtual character Anshe Chung had been infringed because the images had been used in the video without her permission. YouTube removed the offending video. (Link to story)

A news report in the (real-life) Syndey Morning Herald was also the subject of a complaint by Graef, since the news story reproduced a screen shot of the offending video image. However, in the real world, fair-use or fair-dealing exceptions allow reproduction of copyright-protected content for the purpose of news reporting.

It seems that the more distortion we see in layers of reality (the digital alter-ego of a real person is digitally harrassed in a digital world and a digital video of the harassment is digitally posted in the real world, prompting the real person to complain to the real-life company that hosts the digital video), the more fascinating the intellectual property issues become. At its most basic level, the (virtual) Anshe Chung character is merely a string of code protected by (real-world) copyright.  In the Second Life, however, was it copyright that was infringed, or were the personality rights of Anshe Chung infringed? If Ms. Chung can’t bring an action for defamation of character in the virtual world, I’m sure those days aren’t far in the future.

Calgary – 09:13 MST