Cyber-libel: Options for the Defamed

February 6, 2007

The Internet continues to revolutionize global communication as it has traditionally been understood.  A single message, whether posted by email or to a web site, can instantly reach essentially limitless numbers of recipients all over the world.  However, whether those properties are a boon or a hazard depends largely on what is being communicated to whom, and for what purpose.  Like any powerful tool, discourse over the Internet can be put to ends both lofty and base.

One of the more base uses arising with increasing frequency is defamation, or so-called cyber-libel – statements, published on the Internet, that tend to lower a person in the estimation of reasonable members of society.  The fundaments of defamation law have not changed with the advent of the Internet.  The common law has long recognized that a person's right to free speech does not extend to damaging the reputation of another by disseminating falsehood, and that a person whose reputation is injured in this way is entitled to a legal remedy. 

One forum where cyber-libel currently appears to be enjoying a surge in popularity is on bulletin boards dedicated to the discussion of the stock of various public corporations.  These sites are often free to use, and even if they require users to register before posting, usually do not authenticate the personal information provided in the registration process.  In that sense, the users of such sites are, in an immediate sense, anonymous, and may behave as if they cannot be held to account.

However, even in cases where the person posting the offending messages uses a pseudonym, a defamed party is not without a remedy.  If the libel warrants legal action, it is possible initially to sue the party as John or Jane Doe.  Once the action is commenced, a series of court orders can usually be obtained, allowing the poster by IP addresses and similar electronic trails.  When the person has finally been identified, he or she is then sent a care package welcoming him or her to the wondrous new world of legal proceedings.  Sometimes, the very fact that the person realizes that he or she has been caught is sufficient to stop the postings.

Two recent cases, Barrick Gold v. Lopehandia and Vaquero Energy v. Weir, dealt with defamation on such stock bulletin boards.  Vaquero was a case from Alberta in which the court awarded damages of $75,000, $25,000 of which were punitive, in connection with defamatory internet postings over a four-month period.  Barrick was a similar case from Ontario, in which vicious messages alleging various immoral and illegal behaviour on the part of Barrick were posted by a BC resident.  The court in that case awarded $125,000 in damages to Barrick, $50,000 of which were punitive, and issued an injunction prohibiting the defendant from posting similar messages in the future.

It was not clear in advance how seriously courts would treat defamation published on the Internet.  However, these cases have established that cyber-libel will be treated as more damaging, all other things being equal, than 'conventional' defamation.  In the words of the majority of the Ontario Court of Appeal in Barrick Gold , "[c]ommunication via the Internet is instantaneous, seamless, interactive, blunt, borderless, and far-reaching.  It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed...the mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases."

Not every libel necessarily warrants litigation – engaging the machinery of the judicial system should not be done lightly, and each situation warrants special consideration on its facts.  It is important to gauge whether the statements are genuinely harmful to one's reputation, as opposed to merely being offensive.  Sometimes the mere fact that a lawsuit is commenced may be seen, paradoxically, to give an air of legitimacy to the allegations, as if the only purpose of the action is to keep skeletons in the closet.  However, inquiries or comments about the offending postings from members of the community or from investors may indicate that the defamatory message is getting around and should be taken seriously.  These considerations should carefully be weighed in advance of commencing an action. 

The take-home, though, is that there are powerful legal tools available to a person who is defamed on the Internet to identify even an apparently anonymous poster, and to drag him or her, however unwillingly, to the bar of justice.

Michael L. Bromm is an associate in the Vancouver office of Lang Michener and a member of its Litigation Group. Contact him directly at 604-691-7430 or mbromm@lmls.com.

This article appeared in In Brief Summer 2007 and Commercial LItigation Brief Spring 2007.  To subscribe to either of these publications, please visit our Publications Request page.

This article appeared in Business in Vancouver - Legal Matters, February 6-12, 2007.