This is another instance where the court applied the Warman factors (see above) to a case concerning online defamation. Here, the plaintiff brought an action against the host of a political blog and its moderators for defamatory comments posted by anonymous commenters. However, the application failed because the plaintiff could not demonstrate that the comments were defamatory and thus, could not establish a prima facie case. Therefore, interests in protecting the freedom of expression and users’ privacy rights outweighed the public benefits that may flow from granting the order.
A lower court ordered issued a third party injunction compelling removal of a blogging site from blogspot on the basis that it was clearly defamatory. The case nominally establishes a high bar for defamation-related injunctions, but does not necessarily address potential freedom of expression concerns.
(1) The plaintiff sued the operator of a message board and eight anonymous participants who allegedly posted defamatory statements. In accordance with the Rules of Civil Procedure (76.03), the plaintiff sought an order requiring the intermediary to reveal the identities of those participants. (2) The court ruled that disclosure of users’ identities should not be automatic. Rather, the unknown user’s expectation of privacy and the freedom of expression must also be weighed. Four factors that should guide the court are: 1) whether the unknown users could have a reasonable expectation of anonymity given the context; 2) whether the complaint has established a prima facie case against the unknown wrongdoers and is acting in good faith; 3) whether the complaint has taken reasonable steps to identify the unknown party; and 4)...
This case involves a defamatory email and web posting written by a faculty group at York University. The plaintiff was granted a Norwich order compelling two ISPs, Bell Canada Enterprises and Rogers Communications, to disclose information about the owner of a specific IP address so that a libel action could be served. To determine whether a Norwich order should be granted in an online defamation case, the court will consider 1) whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim; 2) whether the applicant has establish a relationship with the third-party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of; 3) whether the third party is the only practicable source of the information available; 4...
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...