The court held an operator of a discussion forum liable for the defamatory remarks posted by its participants because he did not contact his ISP and remove them within a reasonable time after being notified by the complainant. The court further confirmed that the defence of innocent disseminator (see SOCAN v CAIP above), is not available to a website operator once he has received a notice about the offending content. This case suggest that there is effectively a “notice and take down” regime that intermediaries must follow in order to avoid liability in a cyber-libel action.
(1) Also known as the Tariff 22 case, this is the leading decision on ISP liability and copyright infringement. The Court denied the claimants royalties for copyrighted materials that were transferred on the Internet. It interpreted section 2.4(1)(b) of the Copyright Act (the “common carrier exception”) and found that ISPs are not liable as long as they are “conduit” for information (para 32). That is, if an intermediary remains content neutral, they are considered not to have communicated the content at all (para 111). For this reason, intermediaries are also immune from defamation liability (para 89). Whether an intermediary is regarded a conduit for information and thus qualifying for immunity under this section will primarily depend on its function. (2) To successfully use the “innocent disseminator” defence in a...
This case demonstrates a successful application for a disclosure order under the Ontario Rules of Civil Procedure (30.10 and 31.10). Defamatory emails were sent to 75 employees working at the plaintiff’s company. The plaintiff was able to trace those emails to particular IP addresses belonging to the ISP company iPrimus. Given that the plaintiff established a prima facie case, the ISP was required to reveal the owners of the IP addresses in question. The court also noted that ISPs does not have an obligation to disclose user information without a court order.
The main case to reach the Chilean Supreme Court and involving a so-called “right to be forgotten” was an action requesting Diario El Mercurio to delist from search engines content relating the plaintiff to crimes of child sexual abuse, that would impede the claimant’s reintegration and would bring him serious psychological harms, violating his constitutional right to psychological integrity (Art. 19, 1) and to private life and honor (art. 19, 4). Therefore, although requesting the publisher to delist the content from search engines, the case is not related to a data protection claim, but to the more traditional idea of rehabilitation or reintegration of the plaintiff to society, after having his name associated with a crime that took place more than 10 years before. In its reasoning, the court recognized the passing...
The plaintiff sought an injunction and relief against a series of Chilean websites as well as Google, claiming that the websites, along with blogs hosted by Google, were making slanderous or offensive accusations against the plaintiff, who is a lawyer. These websites claimed that the plaintiff is corrupt and collaborated with the military dictatorship in the second half of the 20th Century. The Court agreed with the plaintiff and ruled that the right to plaintiff’s honour was affected. The Court ordered the websites to remove the offensive content, including blog posts with offensive accusations. Additionally, the Court ordered Google to establish a filtering mechanism that automatically prevents the publication of “unequivocally” slanderous content. The decision was not appealed.
The plaintiff sought relief from the administrator of a website (www.reclamos.cl) where people can leave anonymous public messages with complaints against companies and services. The plaintiff, the representative of a school, claimed that the site administrator should be held liable for a slanderous accusation posted against her. The plaintiff claimed that the accusations affected her constitutional rights of freedom of teaching and property. A co-plaintiff claimed that his freedom to work was equally affected. The Court of Appeals rejected the claim by recognizing the need to enforce freedom of opinion and freedom of information without prior censorship. Data protection and regulation of journalism were also mentioned by the Court to prevent identification of possible defendants. The Court of Appeals established that...