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Defamation laws (cyber-libel) and the Internet

Region: Ontario Answer # 361

Libel and slander, known broadly as defamation, are untrue statements made by someone that are harmful to someone else’s reputation. The statements can be about a person, business, organization, group, nation, or product that tends to hurt the person’s reputation. Also, the false statements must be made to other people, not just to the person it is about. Libel refers to written statements and slander refers to oral statements. Under the law, both are grounds for a civil lawsuit.

Cyber-libel is a term used when someone has posted or emailed something that is untrue and damaging about someone else on the Internet, including in message boards, bulletin boards, blogs, chat rooms, personal websites, social media, social networking sites, or other published articles. If you are suing because your reputation was damaged due to a libellous statement, you do not have to prove that it caused you financial loss because the law presumes that you suffered a financial loss as a result of the loss of your reputation.

The basic elements of defamation law remain unchanged on the Internet. Individuals or entities are still responsible for defamatory statements they publish, just as they are in print or broadcast media, and the same defences apply. Courts have also demonstrated they are not willing to allow Internet defamers to claim anonymity.

Generally, a harmful statement will not amount to libel, if one of the following defences applies:

  • Made only to the person it is about. If it was only made to the person mentioned in the statement, and not to anyone else;
  • True statements. If it is actually true, and the person making the statement makes the statement honestly and not maliciously;
  • Absolute privilege applies to statements made in court (as evidence in a trial) or in parliament;
  • Qualified privilege protects statements made non-maliciously and for well-meaning reasons. For example, if an employer is requested to give a reference for an employee, and they give a statement that is their honest opinion;
  • Fair comment. The defence of fair comment may apply in situations where statements made were about issues of public interest, as long the comments were honest statements of opinion, based on fact. If your statements were malicious, this defence will not apply; and
  • Responsible communication of matters of public interest. This defence is available in libel cases. It allows journalists the ability to report statements and allegations, in cases where there is a public interest in distributing the information to a wide audience. However, this defence only applies where the news was urgent, serious and of public importance, and the journalist used reliable sources and tried to report both sides of the issue.

In Canada, the courts have shown they are quite willing to hold responsible anyone who uses the Internet to defame others, even if the defamer is outside the country.

The flip side of Canadian courts’ willingness to hear cases involving defamation originating outside the country is that the Internet makes it even easier for plaintiffs to go “forum shopping”. Differences in the defamation laws and damages awarded in Canada, the United States, and Europe may give allegedly defamed individuals (particularly high-profile plaintiffs) pause to consider where to sue. Now, with the Internet, these plaintiffs may have an easier time making a case for their right to sue anywhere in the world.

Another concern, heightened by the Internet’s broad reach, is the issue of damages. A defamatory statement available on the Internet could arguably prompt a stratospheric damage award because of the huge, worldwide audience. Canadian courts have shown they are not willing to tie damages to the Internet’s potential audience without proper proof.

For more information about defamation laws and the Internet, or for legal assistance, contact a lawyer.

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