Gatekeepers And Online Defamation

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The scourge of online defamation poses enforcement challenges for victims. So much so that there may be a temptation to begin looking for gatekeepers. The direction of the law appears to be ready to assist.

Consider, for example, the problem of the anonymous blogger. The path to justice requires a number of separate steps. Obtain an order requiring disclosure of subscriber information. Cajole the host of the blog to take down the content. Seek an order to validate service of proceedings on the blogger by email. Finally, pursue default judgment. In Manson v. John Doe, 2013 ONSC 628, the plaintiff followed that route and was awarded C$200,000 in damages and nearly C$50,000 in costs on a motion for default judgment. Whether the judgment will ever be satisfied is unknown.

A more direct route might be to seek compensation is to impose a gatekeeping function on the owner of the website. That route might just become easier. Last year, in Canoë inc c. Corriveau, 2012 QCCA 109, the Quebec Court of Appeal upheld an award of C$150,000 in damages and C$50,000 in punitive damages against the website owner who was found to have been grossly negligent in permitting defamatory statements to remain on the site. The hook was that the website owner failed to enforce promptly a website code of conduct.

More recently, in February, the English Court of Appeal, in Tamiz v. Google Inc., [2013] EWCA Civ 68, held that the host of a blog could be liable for defamatory material in circumstances where the host provided a platform, provided assistance and services relating to the platform, and imposed terms and conditions that enabled it to remove or block service in the event of a breach of the terms. The Court of Appeal held that such a host could become liable for allowing defamatory material to remain on the site once the host had been notified of the defamatory material and had a reasonable period of time to remove the material.

Of course national laws may differ with respect to what constitutes defamation and defences to defamation.  So, as always, it is necessary to seek local guidance before jumping to conclusions.

However, the risk management message is clear. If an organization is operating a platform or interactive site with a social media component where users may post comments, reviews and interact, that organization would do well to review its policies and whether it has the resources and compliance structure to ensure that it monitors the site or at least can respond quickly to complaints.