If You Know About It, You’re the Publisher – Website Operator Liability for Defamation

The first few months of 2015 have brought some welcome direction from Canadian courts regarding the liability of operators of websites for defamatory postings on their websites made by third parties. In plain English: we’ve now got a better understanding of when, say, a newspaper publisher, independent blog writer or operator of an online discussion forum will be liable when one of their readers/participants posts a defamatory comment on the website (e.g., in the “comments” section of the newspaper’s website). Astoundingly, this was an open question in Canadian defamation law until now (it’s 2015!).

Perhaps that last editorial comment was a touch unfair. We had some indication from Canadian courts about how these matters would be handled. In Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, the British Columbia Court of Appeal indicated that the operator of a website might be liable in defamation for material posted to the website once the operator received notice of the purportedly defamatory material but did not take steps to remove it; however, the Carter decision did not decide on the merits of that matter, being simply a reversal of the trial court’s summary judgment decision based on the plaintiff’s action being time-barred. (Carter is more often cited as authority for the proposition that simply pointing someone to an online destination which contains defamatory material does not make you a “publisher” of such defamatory material, a conclusion which was adopted by the Supreme Court of Canada in Crookes v. Newton 2011 SCC 47, in which a majority of the Court held that merely hyperlinking to defamatory material could functionally never give rise to liability for publishing the material.) Thus, while Carter gave us an inkling of what might happen to a website operator who left defamatory material on their website after receiving notice of such material, it was not definitive authority. In the meantime, based partly on Carter and partly on cases in other jurisdictions, counsel to large website operators had taken to advising their clients to remove defamatory material after being given notice thereof.

Fast forward to 2015, and we were suddenly blessed with two cases in quick succession which explicitly considered the matter, and explicitly held that the onus is on website operators to remove defamatory material of which they are given notice – failing which they will find themselves liable. First up, Weaver v. Corcoran, 2015 BCSC 165. Many different issues were considered in Weaver, but for our purposes the salient aspect of the case was that  one of the defendants (National Post Inc.) operated multiple websites at which readers had posted comments containing material which defamed the plaintiff. The National Post argued that it was not a “publisher” of the defamatory material contained in the reader comments as they “did not have effective control over those posts”. The court in Weaver observed that the parties to the case were “of the view [that] this case raises, for the first time in Canada, the issue of whether one who operates an internet forum – in this case a reader comment area on the newspaper’s website – is liable for third-party postings”. (Oddly, the Weaver reasons never mention Carter.)

Ultimately, the court in Weaver concluded that the National Post was not liable for the content of the reader comments on the basis that the National Post had not “published” the posts due to the fact that the posts were removed from the National Post’s websites once the National Post was made aware of them. From the decision:

[273] Once the defendants became aware of the comments in the reader postings and received a complaint, they were then taken down. The volume of postings is such it would not be realistic to expect the defendant to pre-vet every posting. …

[275] I agree, as argued by the defendants, that the [English] cases appear to establish the requirement to show an active or deliberate act in making defamatory information available to establish liability. This appears to be a consistent approach in a number of English cases which have grappled with the issue. …

[284]     Until awareness occurs, whether by internal review or specific complaints that are brought to the attention of the National Post or its columnists, theNational Post can be considered to be in a passive instrumental role in the dissemination of the reader postings. It has taken no deliberate action amounting to approval or adoption of the contents of the reader posts. Once the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date.

[285]     In this case, while Mr. Racovali could not recall who he spoke to about having the comments removed, he testified within one or two days of receiving the complaints of the reader posts, he took steps to remove the offending reader posts. While Dr. Weaver says this evidence is not credible as Mr. Racovali did not make a note of this, I accept his evidence on this point. The reader posts were clearly offensive. There is no apparent reason for theNational Post to retain posts of such vitriolic character.

[286]     Action must immediately be taken to fulfill the responsibility not to distribute defamatory material. The evidence establishes that was done within one to two days to address that problem. In my view, that is all the defendants could realistically do in the circumstances. While the plaintiff maintains more should have been done, I am unable to agree based on the evidence before me. As technology progresses, the answer and evidence on this issue may well be different.

[287]     Due to the prompt removal of the offending reader comments once known to the defendants, I have concluded the defendants are not publishers of the reader postings. Accordingly, I do not need to deal with the defence of innocent dissemination or fair comment.

In short, the National Post could not be held liable for the defamatory content contained in its readers’ comments until the National Post became aware of such content and unless it failed to remove the offending material either “immediately” or “promptly” following receipt of notice. The message to website operators from Weaver is thus fairly straightforward: feel free to operate “unmoderated” comments sections on your website, but once you are made aware of defamatory content, you’d better act swiftly to remove that content or risk the pain of an adverse defamation judgment.

While the website operator defendant in Weaver escaped liability on the basis that they weren’t publishers of the defamatory content, in the second of our 2015 defamation decisions, the website operator defendant was found to be a publisher of the content, but escaped liability on the basis that the content constituted “fair comment”. In Baglow v. Smith, 2015 ONSC 1175, the defendants operated a “message board” or online forum in which users could post messages. Users of the forum posted messages which were eventually found to be defamatory of the plaintiff, prompting the commencement of the defamation action; in response to the action, the defendants argued that they were not the publisher of the defamatory material, but instead were merely “the distributor of content generated and posted by third parties” and that “they did not write, edit, modify or in any way participate in the writing or posting of the impugned words”.

The court in Baglow concluded that the defendants were responsible, as publishers, for the defamatory content on the basis that they were the “the moderators and administrators” of the forum, with the power to edit and delete postings made by users. The court’s reasons refer to Carter, but did little more than mention the decision, without expressly applying the principles found in it to the facts at hand in Baglow. The primary concern articulated by the court in Baglow was that allowing the defendants the type of defence they were seeking would tip defamation law’s balance between protection of reputation and freedom of expression too far in favour of the latter. Nevertheless, it seems that the conclusion in Baglow that the defendants were prima facie liable for defamation was animated by the same considerations found in Weaver (which had been released only a few weeks before Baglow).

And so, putting Weaver and Baglow together, we seem to arrive at the conclusion, informed by concerns about providing Canadians with viable mechanisms for protecting their reputations from online disparagement, that Canadian defamation law will permit website operators to operate unmoderated forums (in the sense that material can be posted by users without prior review by the website operator), but that once the operators become aware that purportedly defamatory material has been posted to their forum, they are obliged to remove it within some fairly short period of time in order to avoid defamation liability as a publisher of the material.

All that being said, significant unanswered questions remain. How much time is a defendant permitted to remove a purportedly defamatory comment? Weaver swings between using “immediately” and “promptly” to describe the time period, and ultimately concludes that “one to two days” is swift enough, even in the context of a deeply-resourced and well-staffed commercial operation; will that apply in all circumstances or might shorter or longer periods apply in other situations? What if there is a reasonable dispute about the purportedly defamatory nature of the content? Is there any “safe harbour” for a website operator to consider the matter, or are they obliged to remove the content first, and ask questions later? Are website operators obliged to maintain their websites with the technical ability to alter or delete posts, or could they shelter themselves behind a wall of technical impossibility or difficulty (in other words: what if a website operator constructed a website or forum which it impossible to alter/delete posts)?

Presumably answers to the foregoing will come in time. For now, though, Canadian lawyers can take comfort in knowing that their instinctive response to online defamation (if you know about it, you’re best to take it down) has found favour in the courts.

Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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