A recent inquiry from a client caused me to examine the topic of liability on the internet. My client has a website with associated YouTube channel where persons can post articles and videos. My client’s potential liability with respect to the persons who post the articles and videos can easily be controlled by contract. Prior to posting, a user can be required to “accept” the “terms of service” which has all the desired provisions. However, this does not address my client’s potential liability to third parties. In the context of my client’s inquiry, he was most concerned about someone posting content that is defamatory of a third party.
Most of this client’s internet traffic originates from the United States. In the United States the applicable law is section 230 (c) (1) of the Communications Decency Act. This section indicates that no provider of an “interactive computer service” shall be treated as publisher or speaker of any information provided by another. If the applicable law were U.S. law, the client would have some protection from liability pursuant to the provisions of the Communications Decency Act. A defamed third party’s only remedy would be against the user who posted the defamatory content.
Canada does not have the equivalent of the Communications Decency Act. This means that a party who operates a website, such as my client, potentially has equal liability with the user who actually posts the defamatory material. Canadian Law recognizes freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. However, the law of defamation, which protects a person’s reputation from unjustified assault, is one of the limitations on freedom of expression.
In cases dealing with defamatory statements on the internet, the first consideration of Canadian Courts is whether, when the defamatory subject matter was brought to the attention of the defendant, the offending material was promptly taken down. Taking down defamatory material limits liability of the party who operates the website.
If the defamatory content is not taken down promptly, the Canadian Courts get into an analysis of the elements of defamation:
1. Were the comments defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person?
2. Was it clear that the comments referred to the plaintiff?
3. Were the comments “published”?
If the basic elements of defamation are proven, the onus shifts to the Defendant to establish that a defence of “fair comment” is available. The element of the defence of fair comment are:
1. Was the comment on a matter of public interest?
2. Was the comment based upon fact?
3. Is the comment recognizable as an expression of an opinion and not a statement of a fact?
4. Could a person honestly express that opinion based upon the proven facts?
It is important that the facts be sufficiently stated or otherwise known to the intended audience, so that they are able to make up their own minds on the merits of the comment. There must be a relationship between the comment and the underlying facts. If the factual basis for the comment is unstated or unknown, or turns out to be false, the fair comment defence fails. Even if the facts are known and related to the comment, the defence of “fair comment” can be defeated if the Defendant in making the comment was actuated by express malice against the Plaintiff.
The writer’s advice to person who operate in Canada and are, therefore, subject to the jurisdiction of Canadian Courts, is to put in place the following:
1. Have provisions in your “Terms of Service” that enable you to arbitrarily take down content alleged to be defamatory.
2. Have a clear “Take Down” notification system, so that third parties can alert you to content that is defamatory.
3. Error on the side of caution by quickly taking down content when you receive notification that a third party considers content to be defamatory.