Internet Defamation – Worse Than Other Media?
We read from time to time that Internet defamation is worse than that in other media because of its global reach and persistence over time. Thus the Ontario Court of Appeal in Barrick v Lopehandia 2004 CanLII 12938 issued an injunction against further defamation, in part because of the Internet’s character as “potentially a medium of virtually limitless international defamation” (the Court quoted Matthew Collins, The Law of Defamation and the Internet.) The court (by majority) also increased fivefold the damages awarded at trial, for similar reasons.
Recently the British Columbia Supreme Court granted ex parte injunctions against publication of defamatory material. Nazerali v Mitchell 2011 BCSC 1581 (CanLII) (and against any transfer of domains or material that might facilitate the spread of the libel). See a comment on the case here.
On the other hand, the Ontario Superior Court recently held in Baglow v Smith 2011 ONSC 5131 (CanLII) that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog. The readers are expecting a reply, not a lawsuit, said the Court. It was not appropriate for a participant in a comment thread to go off to court, dropping out of the debate. One can ‘remove the sting’ by responding. The judgment quotes Justice Binnie in the SCC’s WIC Radio decision on fair comment, that public controversy can be a rough trade, and the law needs to accommodate its requirements.
Are the rules about what one can or should say online different from those that apply in print? Should one be compelled to defend oneself online? Are insults less defamatory there (here)?
My take on the issue in is an article I recently wrote.
See http://canton.elegal.ca/?s=defamation
I think the gist is that on the net, there is a higher threshold to pass before it is defamatory, but once you pass the threshold, the damages can be higher than print.
I think Justice Annis moved away from some of the more controversial aspects of the “sting” analysis in the costs award.
I’ve argued repeatedly that that they are more defamatory here (online), and that courts don’t fully appreciate the realities of modern commercial behaviour online.
The cost of free speech is high, particularly in cyberspace where there is no journalistic oversight. Unfortunately, this wonderful right is subject to ill-use. Nevertheless the price must not be carried by an innocent individual or organization.
Nevertheless, fabricated rumors & libelous onslaughts are frequently distributed by miscreants. Ofttimes these cloaked internet libelers possess some case of antisocial (called psychopaths in old movies) or another character disorder, & propelled only by hatred & vengeful, sadistic propulsion. Like a cat to a mouse, they enjoy tormenting or hurting others; they are essentially driven by the pain they inflict; the poor person’s anguish is their twisted trophy, their “narcissistic supply”. Regular citizens such as 97% of those reading this commentary, can’t begin to guess how these individuals think.
This wretched civic setback has grown in the preceding decade due to unmoderated anonymous online e-slander. There have been internet libel law suits where judges have issued orders directing that anonymous internet bloggers are to be revealed in the full light of day, such orders are normally accompanied by protests from a trivial yet noisy family of rabid people who deem that freedom of expression should be absolute and unconditional & the speaker should not be held to account for their words, without consideration to the accuracy or deceptiveness of the allegations. Many believe that should these same protesting citizens were to live through the devastation of a concerted internet smear campaign and the emotional, physical, vocational, and social wellness of victims and their loved ones; they would not be so passionate in their protests.
An inherent distinction of anonymous assertions is that it is not as believable when seriously considered by sensible and open-minded folk. Nevertheless, there is a newfangled dynamic with the challenge of malignant and anonymous blogging. While these allegations may appear suspect, if the target is to be considered for a job, consulting awards, Boy Scout leadership (or a date), the person carrying out the reference checks will probably consider the likely PR exposure associated with engaging the target. Whilst the prospective employer is probably able to see past the vitriol, the decision maker will probably wonder about what their customers and partners will think if less clever and objective.