Some thoughts on online defamation because apparently I am an expert now

If you have read the news in the last couple of weeks, or turned on CBC radio, or listened to talk radio, you may have read some quotes from me or heard the dulcet tones of my voice. I have been media whoring like, well, a media whore. Last week it was the Brian Burke lawsuit. This week it was the sad story of the British Columbia teacher who was totally screwed by his ex-girlfriend online and is still suffering for it. These cases have brought to light the messy ugly side of the internet. Or as some people have argued, a terrible overreaction in the Brian Burke case. Let’s use these cases to talk about online defamation, what you should know about it, and the effects on you as both a potential plaintiff and defendant, you cocksucking whore (see what i did there?).

I should start out with some disclosure here. As mentioned in the Toronto Star article linked above, I represent an interested party in the Brian Burke case, one of the website operators on which the alleged defamation took place. He is not actually one of the defendants, but undoubtedly will get sucked into the case sooner or later.

I should also disclose that technically, I am not a defamation expert. My real expertise (if I have one) is copyright law online. But when you are an “internet lawyer” like me, you have to deal with all kinds of areas of law, and defamation is certainly one of them. Like I joke in some of my internet law presentations I give, I have represented my share of people who have told me “that bitch called me a bitch on Twitter.” It’s a messy world out there on the intertubes.

Let’s quickly look at the facts of the two cases. Brian Burke, ex-GM of the Toronto Maple Leafs, is suing 18 anonymous people (under their usernames like “Slobberface”) for saying online that Burke was the father of sportscaster Hazel Mae’s baby. For a good overview of the case, you can listen to my appearance on TSN690, where we got into a good in-depth discussion of the law and some of the issues when suing anonymous people on the internet. One of the interesting aspects of the case is the makeup of the 18 defendants. Sixteen of them were just making comments on blogs or message boards, and while the other two had their own blogs, these were personal little WordPress blogs probably read by 50 people on a good day. We’re not talking about the Huffington Post here.

The B.C. teacher case is particularly tragic. Lee David Clayworth met a girl while teaching in Malaysia. They dated, but the relationship went south. The ex then went on an internet rampage posting all kinds of lies about how he was a pedophile and other nastiness. She broke into his computer to send nasty emails posing as him, and stole naked pictures of him and posted them online. Clayworth got a Malaysian court judgment against her, but she fled the country. The Malaysian court ordered her imprisoned. But the fact is, all the crap about him is still online, and he is having trouble getting a job most likely because of it. The case really brings home the problem of policing the internet across borders.

So what is the law with regard to online defamation in Canada? Well, we really don’t have any! I kid, I kid. What is true is that we really have no specific online defamation law in Canada. We take “traditional” defamation law and apply it online. I should note that for the most part, defamation comes in two forms – libel is defamation either written down or in some other fixed form (cartoon, video) so that it’s permanent, while slander is defamation spoken orally. It’s why internet defamation is sometimes called “cyber-libel”. To prove defamation in Canada, you only have to show three things, as summarized in one of the Supreme Court’s most recent pronouncements on defamation, Grant v. Torstar:

1. 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;
2. the words in fact refer to the plaintiff; and
3. the words were published, i.e., that they were communicated to at least one person other than the plaintiff.

That is a very low bar to clear. Once you show these three things, the Court just assumes that the words were in fact false. It would be up to the defendant at that point to prove they are true, which is a defense to defamation. Some other defenses include privilege (of two kinds, which I am not getting into because already you’re bored) and fair comment (which requires a “lack of malice” and must be done in “a matter of public interest”). But truth (technically called “justification”) is always the best defense.

Except in Quebec! As usual, Quebec is different. In Quebec, to sue someone for defamation, you have to use the general rule of civil liability in Article 1457 of the Civil Code. That means you have to show the defendant committed a fault, that the plaintiff was damaged, and that the damage was caused by the fault. If you prove all those things, there can be defamation, even if the words were true, as held in the Néron case from the Supreme Court.

Man that’s a lot of law you guys! I’ll stop now. Maybe. I do want to point out one of the interesting differences between Canadian and U.S. law. As mentioned, Canada has a very low bar for defamation. In the States, if you are a public figure and want to sue for defamation, you must prove that the publisher of the words had actual malice (this comes from New York Times v. Sullivan). That is a very high bar. And undoubtedly why Brian Burke has initiated a lawsuit in Canada and not the States.

What does all this mean to you, online?

KEEP YOUR FUCKING MOUTH SHUT. Sorry, sorry, I get emotional. You think you are safe online making defamatory comments, you are not. Brian Burke is attempting to prove that. The law of defamation applies online as it does offline. The same standards apply. And even if what you wrote is on a tiny little corner of the internet that no one reads, that is still going to count as “publication” under the 3rd criteria above.

And even if you do it anonymously or under some username, you can still be sued. Just look at the Brian Burke defendants. As a first step, his lawyers will go into court to attempt to get a court order to turn anonymous user names into real people. There is plenty of jurisprudence to support that this is possible, and technically it is not hard because of IP addresses and the technical logs kept by every website and Internet Service Provider. As I am sure I have written before, you are not anonymous on the internet, even if you think you are.

The one piece of good news is that if you merely link to content that is defamatory, you can’t be liable yourself for defamation. Thank you, Supreme Court!

What if I am the victim of online defamation?

The Clayworth case shows how horribly wrong things can go when you are defamed online. Clayworth seems caught in a Kafka-esque nightmare. Obviously my first advice is to consult an attorney :). You will have some recourses. If the defamation was made on a reputable website, you may have some success in getting the posts removed. Unfortunately, many websites are not reputable. And search engines will be of no help. Google is notorious for never removing search results. They say it is not their job to police the internet, they are only linking to content.

The Clayworth case also highlights the problem with cases that cross borders. He won a judgment in Malaysia, but no American company is going to pay attention to that. If you get an American court order, you’ll be successful getting content on U.S.-based websites removed. But remember, it will be easier to get a judgment in Canada considering our very low bar. And as Canadian law stands, as long as the defamation was read and republished in Canada, you can sue here, thank you Conrad Black and the Supreme Court. But even a Canadian judgment on defamation won’t be enforceable in the U.S., so it’s a Catch-22. I admit, this is messy.

In light of the Clayworth case, the CBC just published a pretty good article with some sound advice and strategies. And here’s a lawyer’s advice, and he’s an actual defamation expert, so he’s worth listening to. Unlike me.

You promised “some thoughts”. Let’s hear them, you cocksucking whore!

Sure, after I sue you in defamation for calling me a cocksucking whore.

Defamation law is designed to protect the balance between two competing interests that are entrenched in law: freedom of expression and protection of personal reputation. I very much respect this. People have the right to speak their minds, but people also have the right to not be falsely accused of being pedophiles. But should just repeating a rumour (like many of the Burke defendants claim) rise to the level of defamation? Should some tiny little comment buried on some little blog be held to the same standard as the Globe and Mail website?

One of the anonymous defendants in the Burke lawsuit went public in the Toronto Star article I linked to above. Today, he wrote a blog post about his situation. His situation  has an extra little interesting wrinkle, because he is a journalism student. He writes:

I now understand that statements online can have major results in the real world, but is everything someone says online subject to lawsuits? What about comments made on YouTube, Reddit, or even Facebook? Is it right to compare something written in a national paper to something commented on a YouTube video? Should they be held to the same standard? I am not saying that statements online are less harmful, but rather I’m just trying to bring awareness to the haziness of the facts and law of this lawsuit I am involved in.

He and I are clearly asking the same questions. I wish I had answers for him, and for you. Brian Burke and his lawyers will say defamation is defamation, and it doesn’t matter that it’s just some random comment. I am not so sure. Legally, I admit there is no difference; publication is publication as per the third defamation criteria. But intellectually, and as someone intimately familiar with the internet since he was dialing up to BBSs on his 2400 baud modem, I am not so sure. To me, there is an inherent difference between The Huffington Post or nationalpost.com or frankly anyone acting in some sort of journalistic capacity, and some dude repeating a rumour in some little-read thread on Toronto Golf Nuts, which is actually a target of the Burke lawsuit (the actual lawsuit is embedded in this CBC post if you want to read it).

I admit that (as a Habs fan especially)  I have always hated Burke and have little sympathy for him. I do appreciate all the work he has done for charity and for his stance on LGBT rights. I still think he’s an asshole (that’s not defamation btw, because I am stating an opinion not putting forth some false statement as fact) and his motivations for the lawsuit may be questionable at best. But I actually hope the lawsuit goes forward, so we can settle some interesting legal questions about this area of law in Canada.

On the other hand, I have a ton of sympathy for Mr. Clayworth. People like his ex who take their offline problems online in this way are the worst sort of scum, and should be pursued to the ends of the Earth. Too bad the law still makes it difficult because as I stated at least a dozen times on the radio, the internet crosses borders, but the law for the most part does not.

In conclusion, STFU.