A great feature of website discussion boards is that they allow people to instantly share thoughts on a given topic with others from their community or around the world. However, they are fraught with complicated legal issues for the businesses, or website operators, who make them available on the Internet.
To prove defamation, a claimant must demonstrate that a defendant “published” defamatory words. Currently in Canada it’s clear that a person who posts defamatory comments about another person or business on a discussion board can be liable for defamation. It’s also clear, as I’ve mentioned in a previous post, that a person or business may be liable in certain circumstances if they hyperlink to defamatory content on another website. But what about defamatory comments made by others on your website? The answer is less than clear, primarily because of two generally competing public policy views. One view is that website operators should not be liable for defamatory content posted on their discussion boards because the task of monitoring is too onerous for most businesses; and that website operators aren’t “publishing” the defamatory content but are merely “distributing” (which generally doesn’t attract liability for defamation). The other view is that website operators should be liable because the potential for instantaneous and severe damage to claimant’s reputations caused by online defamation should compel website operators to monitor, and be responsible for, their discussion boards.
After American courts struggled with these competing public policy views, the U.S. Congress passed legislation granting immunity to businesses that operate website discussion boards, regardless of the level of control that website operators may have regarding posted comments. The case of Finkel v. Facebook is a recent example of the immunity that can be provided to U.S. based companies. There is no similar “immunity” legislation in Canada, and the specific issue has not yet come before a Canadian court. Of course, each case is decided on its own facts, and one would anticipate that key factors a Canadian court would consider would be a website’s Terms of Use, the degree of control and content monitoring by a website operator, and any actions a website operator took (or didn’t take) in response to a notice from a third party regarding defamatory comments.
This is a rapidly emerging area of law, and businesses should consult a lawyer with relevant expertise to assist in drafting adequate Terms of Use and to discuss potential risks prior to launching, or continuing to host, a website discussion board.
