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Computers, Internet and New Technology Laws by Karnika Seth
Trail of the Trolls: Bullying and abuse on the Internet is on the rise, Smitha Verma,The Telegraph
Online censorship is sycophantic, stupid, & unconstitutional, The Sunday Guardian, Dec 11, 2011
Capital cry against Web gag, The Telegraph , Dec 8,2011
Google Sued for Showing Defamatory Results, Rob D Young , Hindustan Times June 23, 2011
To Shoot the Messenger?A Canadian Approach to Libel and the On-Line Service Provider

Subject- Cyberspace

By Jennifer Jannuska 16 July 1997


To Shoot the Messenger?
A Canadian Approach to Libel and the On-Line Service Provider

The Internet is not immune to defamation. In fact, this medium, some would argue, is uniquely prone to “personal insults, [and] violent expressions of disapproval”(1). This phenomenon even has its own name in cyberspace, “flaming”:


Flame
1. vi. To post an email message intended to insult and provoke. 2. vi. To speak incessantly and/or rabidly on some relatively uninteresting subject or with a patently ridiculous attitude. 3. vt. Either of senses 1 or 2, directed with hostility at a particular person or people. 4. n. An instance of flaming.(2)

Most experienced Internet users, however, do not consider flaming to be defamatory (3). A certain toughness of skin is expected of users (4). Flaming is seen as a small price to pay for the unprecedented freedom of speech that users enjoy on the Internet.

When we talk about defamation on the Internet, we usually refer to a more serious kind of reputational assault than being flamed, although the distinction is not always clear(5). True defamation, while nowhere near as prevalent as flaming on the Internet, is certainly a matter of much concern. Reputations are being damaged and abused here as much as anywhere else, and the abusers seem to easily flee into the night, courtesy of anonymity, pseudonymity, and sheer geography(6). The difficulty in tracking liability to the authors of defamatory statements will undoubtedly lead many victims to seek justice against the intermediary distributors. Henry Perritt, an Internet issues scholar at Villanova Law School, describes the problem for “intermediaries”:

An inability to answer [jurisdictional] questions satisfactorily increases the pressure to hold intermediaries liable, because unsatisfactory answers to the jurisdictional questions make legal recovery from content originators less likely. The Internet tradition of allowing anonymity makes the position of intermediaries even worse. If the victim cannot identify the originator because she is anonymous, immunizing an intermediary leaves a faultless victim bearing the loss.(7)

Sopinka J. has, likewise, said that anonymity will increase the likelihood of holding online service providers liable: “Where the defamatory message is posted by an anonymous user, a court may be reluctant to excuse the service provider and leave the injured party empty-handed.”(8)

This paper will tackle the difficult questions of when and how liability for defamation should attach to the online service provider under Canadian law.

It should be noted at the beginning that the Internet does not prima facie create problems for applying defamation law. A statement “published”(9) on the Internet is as “published” as a statement in a newspaper or a handbill or on a billboard, and such a statement can be subjected to the same tests of truthfulness, malice, and so forth(10). In fact, there have already been a number of successfully litigated Internet defamation lawsuits in the United States (11) and abroad (12). This paper is not concerned with litigation against content originators. That issue seems to have been settled satisfactorily.

The problem at hand is what liability online service providers will be forced to assume for third party defamation.

I use the term “online service provider” as a generic term representing at least two distinct kinds of actors: pure access providers and mixed providers(13). What these two have in common is that they both provide access to the Internet. Individuals purchase time from service providers which have the equipment and phone-lines to route the users’ incoming modem calls out into the broader Internet, sometimes referred to as “cyberspace.” “Mixed” service providers, besides giving this access to the Internet, also originate some of their own content. America On-Line is an example of this type of service provider. Confusion sets in where a service provider allows content originating from third parties to be stored at and disseminated from the service provider’s computers. The question of whether third party content can give rise to liability for a service provider was the focus of two American decisions, Cubby v. CompuServe(14) and Stratton Oakmont v. Prodigy(15).

Cubby v. Compuserve and Stratton Oakmont v. Prodigy
There was a story told by the head of the legal section of a large on-line service provider about a new lawyer he had just hired. She said “I don’t know anything about Internet law”. He said “don’t worry; there are only two cases, you can read them in an afternoon, and they contradict each other.”(16)

Cubby and Stratton are the leading cases to address the question of service provider liability for defamatory statements. As attorney Timothy Denton’s quote above indicates, the two cases seem to stand in stark contrast. While the court in Cubby allowed the defendant, CompuServe, the defence that CompuServe had no knowledge of the defamatory content and should therefore not be held liable, the court in Stratton disallowed this “common carrier” defence(17), arguing that Prodigy was exercising editorial control such that it was responsible for defamatory material republished through its service.

Cubby was the first of the two decisions. The facts of that case were as follows: The defendant, CompuServe, had developed contracts with outside publishers to provide newsletters and information databases for its “CompuServe Information Service”, a service accessible to CompuServe subscribers through the CompuServe network. One such newsletter “Rumorville” was a daily publication which contained articles about broadcast journalism and journalists. A competing publication was developed by the plaintiffs, Cubby, Inc., called “Skuttlebut”. “Skuttlebut” was accessible as a private Bulletin Board Service to subscribers dialing into the database through their home computers. The defamatory statements in question were published in “Rumorville” in April 1990 accusing “Skuttlebut” of stealing their information “through [the] back door” and republishing it as their own. The question at bar was whether CompuServe could be held liable as a republisher of the defamatory material. The majority of the District Court held that CompuServe could not be held liable for the material because it was a mere “passive conduit” for the material:

[CompuServe] exercises no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.(18)

In Stratton, defamatory statements alleging fraudulent acts on the part of the plaintiff, Stratton Oakmont, a securities investment firm, were published in “Money Talk,” a computer bulletin board managed by the defendants, Prodigy Services Company. The statements in question alleged:

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