cyber-liability: civil and criminal liability on the internet dan carroll, q.c. field llp...
TRANSCRIPT
Cyber-Liability: Civil and Criminal Liability on the
Internet
Dan Carroll, Q.C.Field LLP
DisclaimerThis presentation is intended for
general educational purposes only and is not legal advice.
Consult your lawyer for advice based on your situation and
circumstances.
Underpinnings
• The Gift of Speech
• The Evolution of Media
• The Law– redistribution – Accountability– Defamation = libel, slander
The Newest Medium: Internet
• “Universally” accessible
• Fast– Instant send (careful there!)– Instant receipt
• Variety of media: text, pix, video, audio
• Not trustworthy
• Indeterminate mass audience: worldwide
• Anonymous
Intersection: Internet and the Law“Paging Dr. Freud. Paging Dr. Freud.”
“This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.”
Bruni v. Bruni
(Reasons by Justice J.W. Quinn of the Ontario Superior Court of Justice, November 29, 2010)
Intersection, continued
“In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.”
http://www.canlii.org/en/on/onsc/doc/2010/2010onsc6568/2010onsc6568.html
Three Paths to Cyber-Liability
• Fail to do what you should– Install firewalls– Protect against transmitting viruses, spyware, etc.
• Do what you should not– Criminal Code, s. 163.1(4): possession of child
pornography– Anti-Spam law: S.C. 2010, c.23 (not in force yet)– Harass/Breach privacy rights/Cyberbully
• Do what you may but in a way you should not– Defamation
Elements of Defamation
• Publication
• Of a statement that identifies the complainant
• Where the statement is such that it would lower the reputation of the complainant in the mind of a right thinking citizen
• To “the world”
• Can be words or pictures, must point to or refer to complainant
• An objective test for reputation: “He is a thief and a liar.” vs. “He is a lawyer.”
What is Defamatory? Example from Twitter
• Horizon Group Management Ltd. v. Amanda Bonnen– Amanda: tenant– Sued by Horizon: management company
• Allegation: the Tweet contained false and defamatory matter of the Plaintiff, namely: “…Who said sleeping in a moldy apartment wasn’t bad for you? Horizon really thinks it’s OK.”
• Case dismissed: “The Court finds the Tweet non-actionable as a matter of law.” No reasons.
What is Defamatory?Example from Facebook
• She “acquired AIDS while on a cruise to Africa…While in Africa she was seen f**king a horse..I kinda feel bad for (her) but then again I feel WORSE for the horse…”
• “…it was not from an African cruise….it was from sharing needles with different heroin addicts, this…caused the HIV virus…she then persisted to sc**w a baboon which caused the epidemic to spread”
• She “got aids when she hired a male prostitute who came dressed as a sexy fireman…”
What is Defamatory?Example from Facebook, continued
• “She” is identified (through a doctored picture of her as “the devil”)
• Action was dismissed. The posts were:– “a puerile attempt by adolescents to outdo
each other”– “a vulgar attempt at humor”– But did “not contain… statements of fact.”
• Context: Facebook as the setting surrounding the communication - one factor
What is Defamatory?Is linking to defamatory content
“publication”?• SCC Case Crookes v. Newton
• Newton ran a website with his commentary on free speech and the Internet. The site did not defame Crookes, but it contained links to articles that did.
• Question: Do links count as “publication” in defamation law, opening the site and its publisher to liability?
Crookes v. Newton (2)
• SCC (split 6-2-1): Links are like footnotes; they “are, in essence, references.”—they “communicate that something exists, but do not, by themselves, communicate its content”. Therefore not “publication” for the purposes of defamation law.– “The fact that access to content is far easier with
hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral.”
• Court notes that since the content linked to can be changed without notice to the linker, it would open up unfair liability.– “Inserting a hyperlink into a text gives the author no control
over the content in the secondary article to which he or she has linked.”
Crookes v. Newton (3)• Court recognizes hyperlinks are the “synapses” of the
web. Impossible to function without them.• Doesn’t mention reductio ad absurdum: Google. If links
are publications, Google is liable for every defamatory statement on the web.
• Court emphasizes this decision accords with recent trend in Canadian defamation law toward greater protection of freedom of expression– Began with 2008 decision to modify the “honest belief”
standard in fair comment - WIC Radio v. Simpson– Continued with 2009 introduction of “responsible
communication on matters of public interest” defence - Grant v. Torstar.
Crookes v. Newton (4)
• Concurrence (McLachlin and Fish.JJ.):– “A hyperlink should constitute publication if, read
contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.”
– Argues this better accords defamation precedents which held merely approving of a defamatory statement (without repeating it) was publication
– Contra: Linkers would still be at risk: e.g. a link reads “I agree with this!”– the page linked to could change without notice.
Crookes v. Newton (5)
• Dissent (Dechamps): links should be considered publication as long as there is evidence someone clicked through to the defamatory material.
• “The hyperlinker performed a deliberate act that made defamatory information readily available to a third party in comprehensible form.”
• Contra: would cripple the Web; does not accord with recent trends in defamation law
Who Sues? Politicians!
• Example: The City Centre Airport Saga
• Blogger named “Darren Holmes”, supposedly a Seattle journalist, writes a post including this allegation against Stephen Mandel:
• “A land developer Mayor votes to close an airport to be converted into residential development. A group arises to protest the decision during an election and, in response, the Mayor creates a counter group to promote his decision to close the airport. And the counter group is given office space and phone lines by one of the biggest land developers in the city.”
Who Sues? Politicians!
• Implication that the Mayor has a financial interest in downtown airport redevelopment
• Press reveals “Darren Holmes” doesn’t exist; the blogger is Nathan Black, coordinator of Envision Edmonton petition to keep the airport open.
• Mayor sues Black for defamation, seeks $500,000 punitive damages
Who Sues? Politicians!
• Mayor successfully gets the action “sealed”– Unclear why judge sealed it. No grounds for keeping the suit
secret. Media quickly applies to have it unsealed and succeeds.
• To link the blog to Black, Mayor gets Court order against:– Twitter– Wordpress (the blog website)
• Automattic Inc. (Wordpress’s parent co.)– MagicJack
• YMAX Corp. (MagicJack’s parent co.)– GMAX (the hosting company)– Shaw (the Internet Service Provider)
Who Sues? Politicians!
• Starts proceedings in San Francisco (U.S. Federal Court) to enforce the Alberta court order
• Six U.S. companies get roped in, plus Shaw• Expensive, time consuming• Suit eventually dropped once press gets
wind of it
More Politicians
• Kent v. Martin: Journalist Arthur Kent ran in the 2008 Alberta provincial election. Just before Election Day Martin, a National Post columnist, published an (allegedly) defamatory column about Kent. Martin wrote:– “Senior campaign strategists in Alberta cannot recall
a worse case of a shooting-star candidate, someone so self-absorbed that Kent has actually mocked the party for failing to treat him with a desired level of reverence.”
– “The “Stud Scud” will land in politics with a thud. He should pray to lose so his “star” qualities will find another place to shine.”
More Politicians
• Kent lost the election and sued for $8 million in damages – Obviously a conservative plaintiff: the largest
defamation award against a media defendant in Canadian history is $1.3 million
• One of Martin’s sources was Kent’s lawyer, who is now being sued, too
• Kent has made nearly a dozen procedural applications to add defendants, get costs, etc.
• Litigation ongoing
Have These Politicians Missed the Boat?
• Cases since 2008 suggest defamation suits by public figures against newspapers are an uphill battle.– If the speech meets the “fair comment” or “responsible
communication” tests, can only be defeated by proving malice.
– Tough road for plaintiffs since most of the evidence is in the possession (or mind!) of the defendant
• New emphasis on freedom of expression over protection of reputation
• Kent v. Martin similar to Grant v. Torstar, where Toronto Star publishes defamatory article about prominent businessman’s sketchy connections to provincial government; dismissed
Moral of the Story
• Even light innuendo can lead to a defamation suit.– Mayor’s odds at trial 50/50. Though a
defamatory implication, some truth in it• Mayor was a developer, he did support the
closure group, and the group was given office space by a prominent property manager, Qualico
• Speech about matters of public interest (partially) protected by ‘fair comment’ defence
• ‘Responsible journalism’ also protected, if meets certain responsibility criteria
Moral of the Story
- Costs of prosecuting and defending this kind of action are very high; risk factors are many- Lots of requests by the plaintiffs to 3rd parties for
disclosure of information, e.g. to Twitter, ISP, hosting service, etc.
- Attempts by plaintiff to keep action under seal- Even when speech protected by a defence, tough to
succeed on a summary dismissal application as cases highly fact specific
- Often the plaintiffs are self-represented or otherwise unable to pay costs if they lose
Moral of the Story
• Newspapers continue to be at the forefront of defamation lawsuits, particularly by public figures– Meaning they bear the brunt of defence
costs, at a particularly poor time given their industry’s financial condition
• But independent journalists, bloggers, commenters, and anyone else using social media will increasingly be targets of suits
Plaintiff Anonymity
• Can plaintiffs remain anonymous while they pursue their defamation claims?’
• A.B. v. Bragg Communications– The plaintiff, a 15 year old girl, was allegedly
the victim of a hoax in which a fake Facebook profile was made using her photo and name, containing disparaging remarks about her sexual behaviour
Plaintiff Anonymity
• Plaintiff requested a publication ban and use of pseudonym
• Case “pits a teenager who finds herself the victim of on-line bullying against the public's right to be informed by a free and independent press given unrestricted access to open court proceedings.”
Plaintiff Anonymity
• Application Judge denied plaintiff’s request for anonymity (publication ban and use of pseudonyms):– No evidence the fake profile had any
physical, psychological, or emotional effect on A.B.
– A publication ban would not serve society’s interest in awareness of “how social networking programs work and can be destructive to young people”
Plaintiff Anonymity
• Plaintiff appeals to Nova Scotia Court of Appeal: dismissed. Court:
“Defamation is a claim that one's reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court. To be able to proceed with a defamation claim under a cloak of secrecy, strikes me as being contrary to the quintessential features of defamation law.”
Plaintiff Anonymity
“A.B. would wish to have her identity shielded from the public, and the fake Facebook profile banned from publication, apparently as a protection from further embarrassment and public scrutiny. But, when A.B. chose to avail herself of the court process in the pursuit of damages for defamation, she submitted to whatever public scrutiny attaches to civil litigation and must accept the attendant diminished expectation of privacy.”
Plaintiff Anonymity
• Court concluded:“I appreciate that testimony in this case will likely be distressful for [A.B.]. Yet embarrassment must be an unavoidable consequence of an open justice system. The disclosure of very personal information is typical in cases where a plaintiff seeks damages for harm. However, subjective feelings of discomfort cannot be the test for anonymity. If it were, our courts would be flooded with preliminary motions seeking anonymity orders.”
• Supreme Court heard case on May 10, 2012
– Quorum of 7. Closed court (publication ban)
Defenses to Defamation
• Deny any one or more of the three essential elements– Not published– Doesn’t identify the complainant– Not defamatory – not capable of being
defamatory: e.g. name calling, parody • Truth/Justification• Fair Comment• Responsible Communication• Privilege: Absolute, Qualified, Statutory
Defenses to DefamationTruth/Justification
• Applies to statements of fact– Onus on the defendant to prove the truth of
the “sting” – the substance – of the defamatory statements
– Must be provably true by the laws of evidence
• Witnesses• Documents
– Big downside risk - failure to prove truth results in a higher damages awards and higher costs awards against a defendant
Defenses to DefamationFair Comment
• Applies to statement of comment, not fact– On a matter of public interest– Based on fact– Recognizable as comment– Fairly made, in the sense that a person could
honestly express the opinion based on proven facts
– Made without malice
Defenses to DefamationResponsible Communication
• Applies to statements of fact– must relate to the public interest– must have been published “responsibly”
• e.g. based upon information a reasonable person would accept as reliable, even though later it may not be possible later to prove the truth of the defamatory statement of fact on admissible evidence
• e.g. a fair and neutral report of both sides of a dispute
Responsible CommunicationCusson v. Quan
• An OPP constable (Cusson) travelled to New York after 9/11
• not through his employer
• presented himself, with his dog, Ranger, as a trained search and rescue team.
• They weren’t.
Cusson v. Quan
Cusson v. Quan• Eventually OPP ordered him back to work.• He resigned.• Cusson was portrayed as a hero in the media.
There were reports he saved two businessmen from the rubble.
• At some point, New York authorities banned Cusson from the WTC site.
• Ontario press reports he had no K-9 training and that he violated OPP rules by taking his uniform and gun out of the province.
Cusson v. Quan
• Cusson sues.
• Eventually the Supreme Court decides case (with companion Grant v. Torstar), establishes a defence of “responsible communication on matters of public interest”
• Requirements?
Cusson v. Quan
A. The publication is on a matter of public interest, and
B. The publisher was diligent in trying to verify the allegation, having regard to:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff's side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.
Malice Defeats some Defenses to Defamation
• MALICE defeats fair comment, responsible communication (not truth)
• Malice is established by showing, for example:– Defendant's dominant motive was to injure the
claimant, or– Defendant was intentionally dishonest or was
reckless as to the truth,or– Defendant acted from an ulterior motive conflicting
with the interest or duty giving rise to the defense• If proven, malice defeats these defenses and
results in a higher damages award and a higher costs award against a defendant
Malice in Practice• In Astley v. Verdun the defendant Verdun was a
shareholder in BMO; plaintiff Astley was a Director• Verdun waged a years-long public crusade against
Astley, calling him “a white-collar criminal who should be jailed for fraud”– One vehicle for his publication: shareholder proposals.
Bank Act requires they be published in proxy circulars• Jury rejected Verdun’s defence that he was a
“shareholder’s rights advocate”– He pleaded qualified privilege, fair comment, and
responsible communication; all rejected by jury– Found Verdun was actuated by malice; he had an
unreasonable fixation on Astley
Malice in Practice, cont’d.
• Jury awarded $650,000 in damages
• Plus $215,000 in legal fees
• Lesson: while malice is hard to prove, if successful, damage awards can be very large provided the defamation was serious, the defendant’s reputation was strong, and the defamatory publication inflicted major damages to livelihood
Damages
• Damages are assumed in defamation actions; they needn’t be pleaded– Statements that lower your reputation in the
community are considered inherently damaging without proof of concrete effects
• But in practice damages range from nominal ($10) to exorbitant ($2.5 million: Hill v. Church of Scientology (2011 dollars))
Unpredictable Awards
• In one 2006 case, Angel v. LaPierre, parents began personal attacks on a website they maintained against a school principal, teachers, and staff.
• Principal, teachers, staff, and teachers’ union (ATA) sued.
• Damage awards ranged from $23,500 (principal) to $1 (teachers’ union).
Criminal Libel
• Defamation is also a criminal offence
• Crimes are rarely removed from the Code, so some antique provisions are still in force, though rarely prosecuted– s.59 Seditious Libel – up to 14 years
• Advocating, without legal authority, the use of force to achieve governmental change within Canada.
– s.296 Blasphemous Libel – up to 2 years
Criminal Libel
• If these sections were dusted off, the defence would bring a Charter challenge
• Of the two “criminal libel” sections, one criminalizes libel “known [by the speaker] to be false” (s.300 – 5 years) & the other, s.301, has no “knowledge of falsity” requirement (2 years)– Meaning one could be convicted of publishing
something true but impossible for the defence to prove• Courts found this possibility intolerable; s.301 has
been struck down as unconstitutional in Newfoundland (R. v. Prior), Ontario (R. v. Gill), Saskatchewan (R. v. Lucas), and Alberta (R. v. Finnegan)
Criminal Libel
• Only written libels can be criminal: s.298(2). Spoken words don’t count.
• The SCC upheld the offence of publishing a criminal libel known to be false (s.300) in 1998 (R. v. Lucas)– Court held a dual tort/criminal prohibition of libel was
acceptable, noting we do the same with negligence/criminal negligence
• In light of the shift in defamation law toward free expression, would a challenge be decided differently today?– Only one justice from that Court remains (McLachlin)
Criminal Libel
• Criminal libel prosecutions are rare, but they do happen
• A former Drumheller town councillor was recently arraigned on charges of defamatory libel stemming from a Facebook post– She’s elected to have her case heard by a
Court of Queen’s Bench judge and jury– Slated for preliminary hearing in October
Criminal Libel
• Many of the accused in these cases are mentally unstable, often fixated on the defendants and extremely litigious
• E.g. R. v. Knight. Mr. Knight sent several letters to the Alberta Mental Health Ethics Committee alleging a nurse “had sexual relations with” and “attempt[ed] to extort money from” severely disabled patients.
Criminal Libel
• The nurse was Mr. Knight’s ex-wife. Knight continued harassing her.
• He was eventually charged with criminal libel under s.300 and convicted.
• On appeal, Knight presented new medical evidence that he was delusional and not criminally responsible.
• The appeal was dismissed as the evidence was not raised at trial and it would not prove him NCR in any case
From the Supremes
• “An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy…”
• “but nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest.”
Justice Binnie
WIC Radio Ltd. v. Simpson
From the Supremes
• Freedom of expression
• Vigorous debate
• Charter s.2(b) – “Everyone has… freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
• Protection of reputation
• Personal integrity and privacy
• The good reputation of an individual represents and reflects the innate dignity of the individual, a concept that underlies all the Charter rights
From the Supremes
• “..the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online…”
• “A review of recent defamation law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media.”
From the Supremes
• “While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of the new communications media.”
Chief Justice McLachlin
Grant v. Torstar Corp
Loss PreventionEmployee
• Be accurate.
• Golden Rule: If you wouldn’t like that said about you, should it be said at all?
• If an opinion, is it honestly held?
Supervisor• Check facts.
• Does the statement concern a matter of public interest?
• Is it too extreme in content/expression to be credible as an honest view?
Internet Usage PolicyPolicy Overview
We provide access to the vast information resources of the Internet to help you do your job faster and smarter. The facilities to provide that access represent a considerable commitment of firm resources for telecommunications, networking, software, storage, etc. This Internet usage policy is designed, to help you understand our expectations for the use of those resources in the particular conditions of the Internet, and to help you use those resources wisely.
While we’ve set forth explicit requirements for Internet usage below, we'd like to start by describing our Internet usage philosophy. First and foremost, the Internet for this firm is a business tool, provided to you at significant cost. That means we expect you to use your Internet access primarily for business-related purposes, i.e., to communicate with clients and suppliers, to research relevant topics and obtain useful business information. We insist that you conduct yourself honestly and appropriately on the Internet, and respect the copyrights, software licensing rules, property rights, privacy and prerogatives of others, just as you would in any other business dealings. To be absolutely clear on this point, all existing firm policies apply to your conduct on the Internet, especially (but not exclusively) those that deal with intellectual property protection, privacy, misuse of firm resources, sexual harassment, information and data security, and confidentiality.
Social Media Participation PolicyPolicy Overview
We encourage communication among our employees, clients, partners, and others - and Web logs (blogs), social networks, discussion forums, wikis, video, and other social media - such as Twitter - can be great ways to stimulate conversation and discussion. They're also invaluable tools for clients and potential clients who want to learn more information about Field LLP and the areas of law we practice in.
This Social Media Participation Policy applies to: • All blogs, wikis, forums, and social networks hosted or sponsored by Field LLP • Your personal blogs that contain postings about Field's business, services,
employees, clients, partners, or competitors • Your postings about Field LLP's business, services, employees, clients, partners,
or competitors on external blogs, wikis, discussion forums, or social networking sites such as Twitter
• Your participation in any video related to Field LLP's business, services, employees, clients, partners, or competitors, whether you create a video to post or link to on your blog, you contribute content for a video, or you appear in a video created either by another Field LLP employee or by a third party.
Even if your social media activities take place completely outside of work, as your personal activities should, what you say can have an influence on your ability to conduct your job responsibilities, your teammates' abilities to do their jobs, and our business interests.
An Ounce of Prevention…
• Take Technical steps– E.g.block access to social media from work– Monitor employees’ Internet access and use
• Educate Staff and Implement Policies– Internet Usage Policy– Social Media Participation Policy
• Supervise and Enforce the Policies– Not only on a complaint basis - do spot checks– Take appropriate disciplinary action
This presentation will be available for download.
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Dan Carroll, Q.C.
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