Court says University sanction over Facebook postings violated Charter

October 15, 2010

An Alberta Court of Queen’s Bench has issued a precedent setting ruling that relates to Facebook comments and, specifically, whether the Charter of Rights and Freedoms can apply to universities.  In the case of Pridgen v. University of Calgary, the court ruled that the post-secondary institution violated two students’ Charter rights when it sanctioned them for posting critical comments about a professor on Facebook.  The students were found by the University to have committed non-academic misconduct and were placed on probation as a result of their Facebook comments.  They applied for judicial review to set aside that decision on various grounds, including that their right to free expression under the Charter.  The University argued before the court that the students had committed acts of defamation on Facebook. 

One of the big issues in the case related to whether or not the Charter applies to universities.  The University argued that the Charter only applies to government institutions and did not apply in this particular case because the University is not part of the government and was engaged in regulating its own internal affairs when disciplining the students.  Earlier court decisions have left open the possibility that the Charter might apply to subordinate bodies created and supported by the government, including “many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the legislatures”.  In this particular case, the court declared that “the University is not a Charter free zone”.  As a result, and considering the particular facts of this case, the court ruled that the students’ Charter rights were infringed by the manner in which they were sanctioned for their online behavior.  A University spokesman has indicated that its legal staff will review the decision to determine whether there will be an appeal.

Leave a Comment » | Defamation, Facebook, Online Reputation Management, Social Networking Websites, Website Discussion Boards | Tagged: , , , | Permalink
Posted by Brian Bowman

Internet hyperlinking case heading to Supreme Court

April 5, 2010

Are website operators presumed to have “published” defamatory materials that they deliberately link to from their websites? If not, what are the circumstances where it can be inferred that a website operator has “published” hyperlinked defamatory materials? We may be about to find out. The Supreme Court of Canada has just granted leave to appeal of Crookes v. Newton, the B.C. decision that I summarized in a previous post last October.

There’s still plenty of  “grey areas” in Internet law. Hopefully, the Supreme Court of Canada will provide more definitive guidance for legal practitioners and website operators in the growing area of online reputation management. In the meantime, website operators should seek legal advice prior to hyperlinking to any potentially defamatory materials on the Internet.

Leave a Comment » | Blogs, Defamation, Internet, Online Reputation Management, Technology | Tagged: , , , | Permalink
Posted by Brian Bowman

Website discussion boards: Who’s responsible for defamatory comments?

November 9, 2009

Internet ForumA 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.

Leave a Comment » | Defamation, Facebook, Internet, Online Reputation Management, Social Networking Websites, Website Discussion Boards | Tagged: , , | Permalink
Posted by Brian Bowman

Can you get sued for hyperlinking?

October 21, 2009

Hyperlink 2The number of cases involving Internet defamation seem to be growing every day. So too, are the number of related issues that businesses need to consider in relation to online activities. Case in point is the recent British Columbia Court of Appeal decision of Crookes v. Newton, where the court was asked if providing a hyperlink to another website containing defamatory comments constituted Internet defamation.

A key hurdle that claimants must prove in defamation lawsuits is that defendants “published” defamatory words. Internet defamation is no different, and in the Crookes case, the court concluded that providing a hyperlink does not necessarily equal the “publishing” of defamatory content. If a website simply provides a hyperlink, or describes a hyperlink’s content in a neutral manner, then according to the court in Crookes, the hyperlink is not adopting the offending words as its own and is not indirectly “publishing” them. However, if the linking website endorses the content of the hyperlink material or encourages the reader to click the hyperlink to the website that contains defamatory material, the defendant may be just as liable for defamation as the original author of the offending material.

The Crookes case provides useful guidance, but businesses should be reminded that each Internet defamation case will turn on its own specific facts, and factors that will be considered include the wording, tone and placement of hyperlinks. To help minimize the risk of being sued for the publication of defamatory comments, business owners should seek legal advice prior to hyperlinking to any potentially defamatory materials on the Internet.

2 Comments | Blogs, Defamation, Internet, Online Reputation Management | Tagged: , , , | Permalink
Posted by Brian Bowman

Another anonymous blogger outed

October 14, 2009

Mask 4A widely reported and controversial issue these days relates the identification of anonymous bloggers (I’ve commented on this issue in previous posts). On point, Cook County (Illinois) Circuit Court Judge Jeffrey Lawrence has ordered the identification of an anonymous commenter.  According to the Daily Herald, Judge Lawrence has ruled that the Daily Herald and Comcast must reveal the identity of a person who posted a comment on dailyherald.com.

It seems that website operators are being increasingly asked, or ordered, to reveal the identity of  anonymous commentators or bloggers, many of whom have likely presumed that their identity would never be disclosed. However, Northwestern University law professor and First Amendment scholar Martin Redish tells the Daily Herald, “[a]ssume a worst-case scenario”. “Proceed on the assumption that your identity can be revealed.”

Americans are very fond of their First Amendment right to free speech (in Canada we call it Freedom of Expression). However, this right does not protect writers whose comments are defamatory. As I’ve said before, this is a rapidly emerging area of law and it’s becoming increasingly important to stay on top of developments.

Leave a Comment » | Blogs, Defamation, Internet, Online Reputation Management, Privacy | Tagged: , , , , , | Permalink
Posted by Brian Bowman

Debate rages over anonymous blogs: The Lawyers Weekly

September 29, 2009

Blog 9The Lawyers Weekly is running a story that focuses on one of the most cutting edge and rapidly emerging areas of law – online reputation management. Here are some excerpts from the story, which profiles an ongoing client matter:

“On the heels of a recent New York state court decision that ordered Google Inc. to reveal the identity of an anonymous blogger in a defamation suit, a Winnipeg business lawyer has asked the California-based online search engine giant to do the same and out a blogger on behalf of an Ottawa-area resident. Brian Bowman, a partner with Pitblado LLP in Winnipeg who specializes in privacy, access to information, online reputation management, intellectual property and technology matters, says that his client was defamed on a site appearing on Google-operated blogspot.com (also known as Blogger.com).”

“The New York court decision and the Canadian case raise “one of the fundamental legal questions of our time over the appropriate balance between legitimate, anonymous Internet speech versus the right for people to protect their reputations,” says Bowman, who expects more of these situations will emerge in the near future.”

Read the full story here.

2 Comments | Access to Information, Blogs, Defamation, Internet, Online Reputation Management, Privacy, Social Networking Websites | Tagged: , , , , , , , | Permalink
Posted by Brian Bowman

Businesses can be defamed

March 30, 2009

gavels1As you know, instant messaging, text messaging, blog postings, online chat forums and social networking websites (such as Facebook and MySpace) have changed the way in which people communicate.  Regrettably, however, many of these new communications tools (in particular, online forums and social networking websites) are being used to defame not only individuals, but businesses as well.  It should not be forgotten that businesses can be defamed.

In general, the defamation (written and spoken) of a business occurs when a party lowers the reputation of a business in the estimation of other members of society or an industry.  Since a business doesn’t have “feelings”, defamation cases related to businesses focus on the damage to a business’ reputation or goodwill due to the comments of another party.   The following court cases are worth checking out, both of which confirm that a business can be defamed and, as a result, is entitled to receive monetary compensation.

In Barrick Gold v. Lopehandia, the defendant was found liable for a massive online defamation campaign initiated by the defendant against the plaintiff.  The defendant had posted comments on gold and mineral investor related online forums defaming the plaintiff.  The Ontario Court of Appeal noted that Internet defamation is different than traditional written forms of defamation since online defamation, or “cyber libel”, is often taken at face value, and is capable of instantly reaching an unlimited number of persons around the globe.  The plaintiff corporation was awarded $75,000 in general damages for damage to its reputation and goodwill, $50,000 in punitive damages, and a permanent injunction to prevent further postings.

In WeGo Kayaking Ltd. et al v. Sewid, the British Columbia Supreme Court awarded $250,000 in general damages to the plaintiff corporation in relation to “review” comments posted online that incorrectly and intentionally classified the plaintiff as a “bad” tour company.

Defamation doesn’t just happen to individuals.  These cases serve as a reminder to businesses that they are capable of being defamed and, as a result, should diligently protect their online reputations.

1 Comment | Facebook, Internet, Online Reputation Management, Social Networking Websites | Tagged: , , , , , , , | Permalink
Posted by Brian Bowman

Follow

Get every new post delivered to your Inbox.

Join 73 other followers