By David Canton

Two recent Canadian court decisions considered the Internet as a medium for defaming individuals and whether the laws that restrict damaging communication in print apply in the same manner to the worldwide web.

The courts sent a clear message the same defamation laws apply to Internet communications as to printed messages. Individuals should think twice about posting something derogatory about another.

Case law has defined defamation as a comment that "tends to lower the person in the estimation of right-thinking members of society."

Libel and slander are other commonly used terms for defamation.

In the first case of Vaquero Energy Ltd. and Robert N. Waldner v. Weir, the Alberta Court of Queen's Bench analysed the defamation of individuals and corporate entities online. Messages were posted in an Internet chat room, which used highly derogatory language to describe the second plaintiff, who was the president and CEO of the plaintiff company The court heard computer forensic evidence, which enabled the plaintiff to establish the identity of the person responsible for the postings. The defendant denied having sent the messages and attempted to put forth the possibility someone had stolen his Internet protocol address or used his computer to send the defamatory messages.

The court found against the defendant. The award for damages totaled $50,000 for both plaintiffs, as well as $25,000 in punitive damages.

The second decision involved a claim brought as a result of the Washington Post publishing three defamatory articles on its website and in its newspaper. In this case of Bangoura v. Washington Post et al, the Ontario Superior Court found those who publish via the Internet are aware of the global reach of the net.

The legal enforcement against the publishing of derogatory information on the Internet is not just a Canadian phenomenon. In Bangoura, the court referred to a recent decision in Australia.

The case of Dow Jones & Company Inc. v. Gutnick, a U.S.-based corporation published material on the Internet that allegedly defamed Mr. Gutnick. The publication over the Internet was accessed by the High Court of Australia and was a major factor in persuading the court that it had jurisdiction over the matter.

The court emphasized those who make information accessible by a particular method do so knowing the reach that their information may have.

Specifically, the court commented: "those who post information on the worldwide web do so knowing the information they make available is available to all and sundry without any geographic restriction."

Individuals who use the Internet as a conduit to communicate are not aiming to reach a small audience. In Canada, the court stressed e-mails are easy to send and can be done anonymously so the recipient has no way of determining the motive behind the message and cannot discount comments.

Internet messages are also instantaneous and distributed worldwide, allowing irrevocable damage to occur to the person's reputation before the target is even aware.

The award of punitive damages is a clear indication of how serious the courts view using the Internet as a weapon to defame someone.

© 2004 Harrison Pensa LLP, all rights reserved.