Internet Defamation? Count the Readers

An English court has recently held that the fact that a defamatory comment has been published online does not mean that anyone has read it. The plaintiff must show that the comment has been accessed as well.

In the English case, Brady v. Norman [2008] EWHC 2481 (QB), described on OutLaw.com, the question was one of qualified privilege, and whether some people without an interest in knowing the information had nevertheless been given access to it.

While this is reminiscent in some ways of the Bangoura case in Ontario, where the only visitors to the online defamation appeared to have been the plaintiff and his lawyers, I do not recall that the lack of frequent access was legally significant in that case. The Court of Appeal turned the plaintiff away on the ground that the defamation was too remote from Ontario. On the other hand, maybe remoteness was shown in part by lack of actual access. Would it have made a difference if the defamation in that case had been frequently accessed from Ontario?

Is this a test that defamed people will be able to meet, in general?

Comments

  1. An issue along the same lines came up in the recent Crookes v. Wikimedia Foundation decision.

    There the BCSC was considering if posting a link to alleged defaming content on a webpage could be defamation itself and noted:

    [20] Regardless, the issue in this case is not how accessible the website is, but rather, if anyone followed the hyperlinks posted on the p2pnet site. Without proof that persons other than the plaintiff visited the defendant’s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication