Defamation And The Internet: Additional Guidance But No Certainty

In Barrick Gold Corporation v. Lopehandia (2004), 71 O.R. 3d 416 (Ont. C.A.), Justice Blair endorsed the view that the Internet is "potentially a medium of virtually limitless international defamation". In the past year, Canadian courts were frequently occupied with maintaining the balance between free speech and the protection of reputations online. Five recent cases involving defamation and the Internet are of particular note:

First, in Crookes v. Newton, 2011 SCC 47, Justice Abella writing for a majority of the Supreme Court of Canada, found that posting hyperlinks to defamatory material does not expose the person posting the link to liability for defamation. The Court found that hyperlinks are references and, by themselves, are not "publications" of the content to which they refer. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content should that content be considered to be "published" by the hyperlinker. The majority also recognized the potential application of the defence of innocent dissemination to Internet service providers and other Internet intermediaries who may escape liability by showing that they have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel. The Court also highlighted the difference between knowing involvement with a defamatory publication – which would attract liability - and a mere passive instrumental role. It cited, with apparent approval, the English Court's decision in Bunt v. Tilley not to impose liability on an Internet intermediary. Innocent Internet intermediaries should not be put in the untenable position of having to try to accurately adjudicate the merits of defamation claims relating to third party material or risk exposure to liability in the event they refuse to take action. Hopefully the Court will address this matter definitively at its earliest opportunity.

Publication was also at issue in the second case, Elfarnawani v. International Olympic Committee, 2011 ONSC 6784. In this decision, Kenneth Campbell J., found that defamatory words in a newspaper or broadcast are "deemed to be published" under the Libel and Slander Act. As the Supreme Court of Canada observed in Crookes v. Newton, there is "no such presumption in relation to material published on the Internet." Accordingly, the issue of...