*2015 Update Below*
- Summary of a major difference between United States and Canadian online defamation law;
- Summary of Section 230 of the U.S. Communications Decency Act, which confers immunity for third-party defamation to website operators; and
- Contact information for lawyer who’s successfully dealt with cross-border Internet defamation issues.
Canadian and U.S. Defamation Law: Polar Opposites?
People credit the U.S. for having the most defendant-friendly slander and libel laws in the English-speaking world, whereas Canada’s defamation laws are sometimes described as the most plaintiff-friendly.
Other differences also distinguish the neighboring nations’ takes on slander and libel – especially when it comes to Internet defamation.
Online Defamation Lawsuit Case Study: Suck Site Target v. Hosting Company
Canadian Andy Lehrer filed a small claims motion in Ontario against hosting company EasyDNS. Why? An adversary of Andy’s had created a disparaging website about him. EasyDNS happened to host the website. Even though EasyDNS had nothing to do with the creation of the “suck site,” he asked the company to take it down.
EasyDNS didn’t comply.
Instead, EasyDNS explained to Lehrer that, in this instance, without a court order, they wouldn’t take it down. After all, it’s not a hosting company’s responsibility to determine what is and isn’t libel.
So, what did Lehrer do in response to EasyDNS’ refusal? He added more “counts” to his defamation lawsuit. Lehrer’s reasoning? Since EasyDNS posted a blog entry about the lawsuit, Lehrer is arguing that doing so is not only illegal, but punitively egregious. (For this tactic to work, there would have to be publicly withheld facts that make a huge difference in the case.)
Section 230 of the CDA: The Big Difference Between United States and Canadian Defamation Law
In the U.S., this online defamation lawsuit against the ISP (which we’re differentiating out from Lehrer’s claim against his original detractor, Rourke) wouldn’t make it past round one. Why? Section 230 of the CDA.
Legalese and limited exceptions aside, Section 230 of the CDA states that website operators cannot be held responsible for libelous third-party content. To wit, Section 230 is why Facebook and GoDaddy aren’t successfully sued for every act of online defamation committed by users on their respective platforms.
Difference Between United States and Canadian Law Means EasyDNS Will Go To Court;Wouldn’t Happen In The U.S.
Since a Canadian court is handling this case, EasyDNS must explain to a judge: EasyDNS is not the content author or editor and shouldn’t be held responsible for defamation.
To be clear: It’ll be shocking if a Canadian court sides with Andy and saddles EasyDNS with damages for not taking down the anti-Lehrer website. Canada and U.S. law books may not be doppelgangers, but it’s not North Korea above the 41st parallel. Canadians care about free speech as much as Americans.
What is different, though, is that EasyDNS has to expend significant resources to quash the case. In the United States, this online defamation lawsuit wouldn’t have passed the proverbial bouncer.
June 2015 Update
Andy Lehrer won his defamation claim against his original adversary, Tim Rourke. And according to the EasyDNS blog, the hosting company plans to move forward with a takedown against the offending website, now that there is a legitimate court ruling on the matter (which is all the company wanted in hand before complying with the takedown request). From EasyDNS’ Website:
To clarify, this blog post was not about Lehrer’s dealings with his original detractor. Instead, it dealt with Lehrer’s defamation claims against EasyDNS, the hosting company. Moreover, we used the case as a vehicle to illustrate a significant difference between Canadian online defamation law and U.S. online defamation law.
Consult An Internet Defamation Lawyer
Kelly / Warner Law handles international and online defamation issues. We have assisted many Canadians—and Canadian companies — with cross-border slander and libel challenges. If you’ve got a defamation question or issue, get in touch today.