Howard W. Winkler and Stephen M. Satchel
E-mailers and Bulletin Board users Beware! As everyone and everything moves to the internet so too does the law of defamation.
E-mail and the internet are becoming common methods of communicating both within organizations and to the world at large. While there is very little case law to date on the subject, it is widely agreed that the general law of defamation will apply to e-mail communications and information posted on or transmitted through the internet. Electronic communications are often not confidential and the potential scope of distribution of an imprudent remark or statement could be very wide. This could have the effect of converting what would otherwise be a private, non-actionable communication into something for which damages might have to be paid.
What Is Defamation?
A defamation is committed when anyone publishes false words to a person or entity’s discredit.
Electronic Communications Within the Workplace
For those in organizations using e-mail, it is prudent to remember that electronic communications are not necessarily private and that even when one perceives a message to have been deleted, it still may exist on a network or on the hard drive of a computer. Further, employers, under certain circumstances, may be held responsible for the defamatory or discriminatory communications of its employees facilitated through a corporately provided e-mail system or intranet. Because it is difficult for a company to control or edit such material on an ongoing basis, it is important to educate employees as to the legal implications of sending messages which may be read by multiple users. Employers should also ensure that appropriate guidelines are circulated to and are known by employees. A compliance program which forms a term of employment might also be wise. Standard disclaimers on e-mail also help to restrict, although not eliminate, liability. Finally, coverage for defamation should be considered in the context of corporate insurance.
The internet makes it possible for an individual to “publish” defamatory words to a worldwide community with a speed not previously imagined. Such messages are forwarded or copied almost instantly and once delivered cannot be retrieved. Until the advent of the internet, mass communication was for the most part the domain of broadcasters and publishers. With the increased ability to disseminate information so broadly, users of the internet must be sensitive to the applicability of defamation laws to their postings. Similarly, those who are written about must be aware of their rights and the remedies available to them.
A good example of internet defamation arises in the context of financial bulletin boards. Many service providers such as Yahoo! and Silicon Investor provide bulletin boards on which members can post messages concerning any number of public and private companies. Great care should be taken by anyone posting such messages. The comments posted are immediately published worldwide and a person or organization defamed will be in a position to bring an action against the maker of the statement in any number of jurisdictions.
The fact that messages are posted on bulletin boards using pre-selected user names provides little protection against liability. Gowlings experience in technology and defamation law has allowed us, using efficient and innovative proceedings, to successfully break the anonymity of user names and obtain the disclosure of the true identities of those posting messages on such bulletin boards. In some of these cases it has been found that the postings were made by insiders who have exposed themselves not only to defamation proceedings but to charges of market manipulation and insider trading as well.
While it is fairly clear that someone posting a message on the internet will be liable for any damages caused by their defamatory remarks, it is not so certain with respect to the internet service provider who merely acts as the “post office” of the message. In the United States, legislation exists which protects internet service providers from liability. No such legislation exists in Canada and it is currently unclear whether, and to what extent, our courts may impose liability on those who facilitate the transmission of defamatory statements.
While some might think that the threat of internet defamation limits freedom of speech, the imposition of liability in these circumstances is no different conceptually than in respect of newspapers, television or in respect of any other statement made by more traditional means.
Communications by e-mail and the internet are often spontaneous and lack the contemplation that written communications once enjoyed. People frequently initiate or join electronic discussions without fully understanding the implications of their contribution. Inadvertent exposure to liability is becoming more and more commonplace. With our current state of technology, it is becoming increasingly important for people to understand the law of defamation and the rights and obligations which attach to communicating in the 21st century.
Article supplied by Howard Winkler, LL.B., Gowling Lafleur Henderson LLP.
Originally published August 2001.
Mr. Winkler is partner with the law firm of Gowlings, is certified as a Specialist in Civil Litigation by the Law Society of Upper Canada and is Co-Chair of Gowlings’ Media & Defamation National Practice Group.