Simon Chester is the partner in charge of research and a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch. This article was prepared with the assistance of Lauralee Bielert.

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In the passionate war of words on the electronic frontier, some people believe that self-help is the best way to combat cyberlibel. For example, the vp and general counsel of America Online – the fastest growing online service – says that when people come to her complaining about being defamed online, she will often give them a starter disc good for 10 hours free time on America Online and tell them to go defend themselves.

Much about electronic communication encourages spontaneity. One key stroke and a posting is made. The medium sparks strong, even passionate, views – ‘flame wars’ are all too common. Strong words can span the globe. Strong words often defame.

Increasingly, victims of cyberlibel are turning from self-help remedies towards legal action in the courts. Take two recent examples:

– Former Australian university professor David Rindos recently won $40,000 for a libel posted by anthropologist Gil Hardwick. Hardwick posted a message on an anthropology bulletin board suggesting Rindos’ professional career was based more on his ability to berate and bully than his academic research.

In awarding damages, the judge accepted that the message harmed the prof’s personal and professional reputation, making it more difficult for him to obtain a new job.

– In a recent Ohio case, the publisher of an electronic newsletter was sued for defamation by an online marketer. The marketer had sent a message across many Usenet newsgroups offering people a quick way to make money by volunteering to receive junk e-mail messages. The publisher criticized the posting as a ‘bait and switch scheme’ operated by a ‘slick direct-mail baron’ in an article entitled ‘Cybersucker.’ He settled the case before trial.

Meanwhile in Canada, the London, Ont. police chief, Julian Fantino, has launched the first online defamation case in this country, for $1.5 million. He’s suing a Toronto man embroiled in a legal battle with the London force over attempts to use access-to-information laws to obtain police documents.

So what makes defamation on the Net any different than defamation anywhere else?

(Defamation is the catch-all term for libel and slander: the difference between the two being that libel is written and slander spoken. Defamation occurs when a person makes a false statement about another person which tends to harm reputation. Intent to harm is irrelevant.)

While it doesn’t make any difference whether defamatory statements are published in a newspaper or posted on a newsgroup – at least in terms of legal liability – the new technology does add some interesting twists to defamation problems.

Scope of damages

How do you fix damages? The speed with which information can be sent out over the Internet and the ability to target specialized lists of users around the world increases the harm that can be done to an innocent reputation. Although it’s possible for a victim of a cyberlibel attack to respond over the Net with the same force and speed, once the damage is done, it may be difficult, perhaps impossible, to contain damage done globally.

Are systems operators liable for defamatory statements posted by users? The key issue is whether the service providers are publishers of information (like newspapers) or merely distributors of information (like newsstands). This distinction is important because distributors are not liable for selling defamatory material unless they did so knowingly. Publishers, on the other hand, may be held liable regardless of whether they were aware the published statements were false.

In a 1991 u.s. defamation case involving CompuServe, the court held that the online service could not be held liable since it was merely a disseminator of information. More recently, though, a court went the other way, finding Prodigy services liable as a publisher. The court noted Prodigy’s editorial control over the bulletin board postings through the use of content guidelines and screening software.

Where is the libel?

Which country’s courts govern the Internet? With the Internet now spanning more than 150 countries around the globe, the market is wide open for plaintiffs to shop around in order to find the country where they feel their chances of success are highest. Already England is becoming a popular jurisdiction with its strict laws favoring libel victims.

Closer to home, the differences between the law of defamation in Canada and the u.s. could enhance the popularity of cross-border shopping.

The most significant difference between American and Canadian defamation law relates to public figures. In the u.s., public officials and public figures cannot win a defamation case relating to their official conduct unless they can show that the statement was made with ‘actual malice.’

In Canada, the balance between protecting free speech and protecting the reputation of individuals is tipped in favor of the individual – public figures do not have to meet the actual malice standard, which consistently lessens the case they must make.

As we reported in Playback a month ago, the Canadian position was challenged in the Casey Hill case, but the Supreme Court of Canada emphatically rejected the American ‘actual malice’ standard. It unanimously held that the common law of defamation is consistent with the values underlying the Canadian Charter – the ‘innate dignity of the individual’ and the right to privacy – and does not unduly restrict freedom of speech.

Given this difference between Canada and the u.s., a public figure who is defamed on the Net might seek to launch a suit in Canada, particularly if u.s. courts extend the public figure exemption to include well-known users in the Internet community who regularly post messages on the Net.

Anarchy or law?

Having come to the last article in our cyberseries, one fundamental issue remains: is the Net a place of anarchy – or law? Should the Net continue to operate on a self-regulating basis or is it time to impose more restrictions on information transmitted over the Net? These are tough issues for everyone. The Net has up to now been a place for unfettered free speech.

But as our series has shown, there are competing values. The challenge will be to strike the right balance between legal and community responses to preserve the unique potential of the Net as a source of creativity, knowledge sharing and global communications, while also addressing the realities of its darker side.

(this article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on a particular situation.)