You know a defamation case is going to be a good one when it starts like this:
Political debate in the Internet blogosphere can be, and, often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar. It is not for the faint of heart. This case is an action in defamation involving political bloggers on the Internet.
The case is Baglow v. Smith, 2015 ONSC 1175. One of the issues in the case was whether the moderator of a message board who does not remove defamatory content is liable as a publisher for defamation purposes.
The defendants, Mark and Connie Fournier, moderate a message board on the Internet called “Free Dominion”. The plaintiff claimed the defendants refused to remove content they knew was defamatory. The defendants refused, claiming they thought it wasn’t defamatory and that freedom of speech on the Internet required that they not be held liable for statements posted by others. The judge summarized their position as follows:
The Fourniers submit that they did not write, edit, modify or in any way participate in the writing or posting of the impugned words or any of the comments in the thread. They submit that they are simply the operators of Free Dominion. It is the message board software that allows users to register. There is no intervention from the operators themselves. Any registered person can post and start a thread.
The Fourniers take the position that holding a message board and its operators liable as publishers for postings by the hundreds of people who post on it daily is an unconstitutional violation of the guarantee of freedom of expression. Operators of forums will be forced to either immediately take down a posting upon complaint or face liability as publishers for writings which they did not write, edit or otherwise have knowledge. Essentially they are requesting this Court to make a finding, as was made by the Supreme Court of Canada in Crookes, that the provider of an interactive computer service should not be liable for user-generated content from third parties.
In support of their position the Fourniers point to the importance of the blogging and message board mediums to the democratic process and the flow of information. The Fourniers submit that holding message board operators liable will have a chilling effect on the flow of information and the freedom of expression and debate. Their concern with respect to the chilling effect of holding message board operators liable was reflected in their evidence. They state that they are not the CBC or the National Post. They should not have to have a battery of lawyers.
It is the position of the Fourniers that the simple provision of software to enable a message board or forum is equivalent to the provision of a hyperlink. The message board itself, the software, is content neutral. In my view this position is disingenuous and ignores reality. A message board or forum is set up precisely to provide content to its readers. Its whole purpose is to provide content.
Justice Polowin rejected these arguments. She found that the Fourniers were the moderators and administrators of Free Dominion. They were also not passive bystanders. They make posts themselves and participated in threads. Moreover, as moderators and administrators, the Fourniers had the ability to control content on Free Dominion. This included having the ability to delete posts and comments from the message board, even though they rarely did so. Madam Justice Polowin also rejected that message Board operators’ liability was the same as those who merely provide hyperlinks to content posted by third parties under the Supreme Court ruling in Crookes. Further, it was inappropriate to expand Crookes beyond the holding in that case. According to the judge:
The Fourniers submit that this Court has the jurisdiction to make incremental changes to the law that give effect to Charter values, pointing to the Supreme Court of Canada decision in WIC Radio. Reliance is placed on the reasoning of the Supreme Court in Crookes. Message board operators are simply facilitating content being made public. The Fourniers make reference to paragraph 21 of Crookes “…some acts are so passive that they should not be held to be publication”. They note Bunt v. Tilley,  EWHC 407 (GB) a decision of the Queen’s Bench in England which considered the potential liability of an Internet service provider. The Court there stated that in order to hold someone liable as a publisher, “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words” (paragraph 23). The Fourniers submit that like a hyperlink, a message board is content neutral.
In addition the Fourniers refer to the statutory regimes in both the United States and the United Kingdom. The United States enacted the Communications Decency Act, 47 U.S.C., section 230(c)(I) in 1996. The provision states in part:
No provider or use of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
This provision was interpreted by the United States Court of Appeals for the Fourth Circuit in Zeran v. American Online, 129 F. 3d 327 (1997), as providing an absolute immunity from liability for Internet service providers with respect to defamatory online postings.
England and Wales also addressed this issue with recent statutory amendments to the common law. The Defamation Act 2013, Elizabeth II: Chapter 26 came into force on January 1, 2014. It includes a defence for the operator of a website to show that it was not the operator who posted the statement on the website. However that defence would be defeated if it was not possible for the complainant to identify the person who posted the statement, the complainant gave the operator a notice of complaint in relation to the statement and the operator failed to respond to the notice of complaint in accordance with the regulations (section 5(1)(2) and (3))
I note that the CCLA has taken a position on the issue of publication in this litigation that is supportive of the Fourniers. It is the CCLA’s position that, consistent with the Supreme Court’s decision in Crookes, operators and administrators of weblogs, online message boards and similar Internet platforms should not automatically be considered to have published, and therefore held legally responsible for defamatory content created by others. The CCLA points to the dramatic transformation in the technology of communication. Weblogs, message boards and similar Internet platforms have become important vehicles for people to exchange ideas. Holding operators and administrators liable for defamatory content, simply for providing those vehicles, would damage freedom of expression and have a chilling effect…
In my view the reasoning in Crookes is not applicable to the circumstances that present in this case. Moreover I am mindful, as indicated in the Supreme Court of Canada case law set out above, that the law of defamation involves a delicate balance between two fundamental values: the worth and value of an individual’s reputation, which the law of defamation seeks to protect, and the freedom of expression, which the law of defamation inherently limits. The evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance. Therefore I find the impugned words to have been published by both the Fourniers and Mr. Smith.
On the facts of the case, the court found the impugned words to have been defamatory. However the defence of fair comment was made out and the plaintiff’s claim was dismissed.