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Cyber-Liability: Civil and Criminal Liability on the Internet Dan Carroll, Q.C. Field LLP

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1 Cyber-Liability: Civil and Criminal Liability on the Internet Dan Carroll, Q.C. Field LLP

2 Disclaimer This presentation is intended for general educational purposes only and is not legal advice. Consult your lawyer for advice based on your situation and circumstances.

3 Underpinnings The Gift of Speech The Evolution of Media The Law –redistribution –Accountability –Defamation = libel, slander

4 The Newest Medium: Internet Universally accessible Fast –Instant send (careful there!) –Instant receipt Variety of media: text, pix, video, audio Not trustworthy Indeterminate mass audience: worldwide Anonymous

5 Intersection: Internet and the Law Paging Dr. Freud. This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment. Bruni v. Bruni (Reasons by Justice J.W. Quinn of the Ontario Superior Court of Justice, November 29, 2010)

6 Intersection, continued In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace. 6568/2010onsc6568.html

7 Three Paths to Cyber-Liability Fail to do what you should –Install firewalls –Protect against transmitting viruses, spyware, etc. Do what you should not –Criminal Code, s. 163.1(4): possession of child pornography –Anti-Spam law: S.C. 2010, c.23 (not in force yet) –Harass/Breach privacy rights/Cyberbully Do what you may but in a way you should not –Defamation

8 Elements of Defamation Publication Of a statement that identifies the complainant Where the statement is such that it would lower the reputation of the complainant in the mind of a right thinking citizen To the world Can be words or pictures, must point to or refer to complainant An objective test for reputation: He is a thief and a liar. vs. He is a lawyer.

9 What is Defamatory? Example from Twitter Horizon Group Management Ltd. v. Amanda Bonnen –Amanda: tenant –Sued by Horizon: management company Allegation: the Tweet contained false and defamatory matter of the Plaintiff, namely: …Who said sleeping in a moldy apartment wasnt bad for you? Horizon really thinks its OK. Case dismissed: The Court finds the Tweet non- actionable as a matter of law. No reasons.

10 What is Defamatory? Example from Facebook She acquired AIDS while on a cruise to Africa…While in Africa she was seen f**king a horse..I kinda feel bad for (her) but then again I feel WORSE for the horse… …it was not from an African cruise….it was from sharing needles with different heroin addicts, this…caused the HIV virus…she then persisted to sc**w a baboon which caused the epidemic to spread She got aids when she hired a male prostitute who came dressed as a sexy fireman…

11 What is Defamatory? Example from Facebook, continued She is identified (through a doctored picture of her as the devil) Action was dismissed. The posts were: –a puerile attempt by adolescents to outdo each other –a vulgar attempt at humor –But did not contain… statements of fact. Context: Facebook as the setting surrounding the communication - one factor

12 What is Defamatory? Is linking to defamatory content publication? SCC Case Crookes v. Newton Newton ran a website with his commentary on free speech and the Internet. The site did not defame Crookes, but it contained links to articles that did. Question: Do links count as publication in defamation law, opening the site and its publisher to liability?

13 Crookes v. Newton (2) SCC (split 6-2-1): Links are like footnotes; they are, in essence, references.they communicate that something exists, but do not, by themselves, communicate its content. Therefore not publication for the purposes of defamation law. –The fact that access to content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Court notes that since the content linked to can be changed without notice to the linker, it would open up unfair liability. –Inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

14 Crookes v. Newton (3) Court recognizes hyperlinks are the synapses of the web. Impossible to function without them. Doesnt mention reductio ad absurdum: Google. If links are publications, Google is liable for every defamatory statement on the web. Court emphasizes this decision accords with recent trend in Canadian defamation law toward greater protection of freedom of expression –Began with 2008 decision to modify the honest belief standard in fair comment - WIC Radio v. Simpson –Continued with 2009 introduction of responsible communication on matters of public interest defence - Grant v. Torstar.

15 Crookes v. Newton (4) Concurrence (McLachlin and Fish.JJ.): –A hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. –Argues this better accords defamation precedents which held merely approving of a defamatory statement (without repeating it) was publication –Contra: Linkers would still be at risk: e.g. a link reads I agree with this!– the page linked to could change without notice.

16 Crookes v. Newton (5) Dissent (Dechamps): links should be considered publication as long as there is evidence someone clicked through to the defamatory material. The hyperlinker performed a deliberate act that made defamatory information readily available to a third party in comprehensible form. Contra: would cripple the Web; does not accord with recent trends in defamation law

17 Who Sues? Politicians! Example: The City Centre Airport Saga Blogger named Darren Holmes, supposedly a Seattle journalist, writes a post including this allegation against Stephen Mandel: A land developer Mayor votes to close an airport to be converted into residential development. A group arises to protest the decision during an election and, in response, the Mayor creates a counter group to promote his decision to close the airport. And the counter group is given office space and phone lines by one of the biggest land developers in the city.

18 Who Sues? Politicians! Implication that the Mayor has a financial interest in downtown airport redevelopment Press reveals Darren Holmes doesnt exist; the blogger is Nathan Black, coordinator of Envision Edmonton petition to keep the airport open. Mayor sues Black for defamation, seeks $500,000 punitive damages

19 Who Sues? Politicians! Mayor successfully gets the action sealed –Unclear why judge sealed it. No grounds for keeping the suit secret. Media quickly applies to have it unsealed and succeeds. To link the blog to Black, Mayor gets Court order against: –Twitter –Wordpress (the blog website) Automattic Inc. (Wordpresss parent co.) –MagicJack YMAX Corp. (MagicJacks parent co.) –GMAX (the hosting company) –Shaw (the Internet Service Provider)

20 Who Sues? Politicians! Starts proceedings in San Francisco (U.S. Federal Court) to enforce the Alberta court order Six U.S. companies get roped in, plus Shaw Expensive, time consuming Suit eventually dropped once press gets wind of it

21 More Politicians Kent v. Martin: Journalist Arthur Kent ran in the 2008 Alberta provincial election. Just before Election Day Martin, a National Post columnist, published an (allegedly) defamatory column about Kent. Martin wrote: –Senior campaign strategists in Alberta cannot recall a worse case of a shooting-star candidate, someone so self-absorbed that Kent has actually mocked the party for failing to treat him with a desired level of reverence. –The Stud Scud will land in politics with a thud. He should pray to lose so his star qualities will find another place to shine.

22 More Politicians Kent lost the election and sued for $8 million in damages –Obviously a conservative plaintiff: the largest defamation award against a media defendant in Canadian history is $1.3 million One of Martins sources was Kents lawyer, who is now being sued, too Kent has made nearly a dozen procedural applications to add defendants, get costs, etc. Litigation ongoing

23 Have These Politicians Missed the Boat? Cases since 2008 suggest defamation suits by public figures against newspapers are an uphill battle. –If the speech meets the fair comment or responsible communication tests, can only be defeated by proving malice. –Tough road for plaintiffs since most of the evidence is in the possession (or mind!) of the defendant New emphasis on freedom of expression over protection of reputation Kent v. Martin similar to Grant v. Torstar, where Toronto Star publishes defamatory article about prominent businessmans sketchy connections to provincial government; dismissed

24 Moral of the Story Even light innuendo can lead to a defamation suit. –Mayors odds at trial 50/50. Though a defamatory implication, some truth in it Mayor was a developer, he did support the closure group, and the group was given office space by a prominent property manager, Qualico Speech about matters of public interest (partially) protected by fair comment defence Responsible journalism also protected, if meets certain responsibility criteria

25 Moral of the Story -Costs of prosecuting and defending this kind of action are very high; risk factors are many -Lots of requests by the plaintiffs to 3 rd parties for disclosure of information, e.g. to Twitter, ISP, hosting service, etc. -Attempts by plaintiff to keep action under seal -Even when speech protected by a defence, tough to succeed on a summary dismissal application as cases highly fact specific -Often the plaintiffs are self-represented or otherwise unable to pay costs if they lose

26 Moral of the Story Newspapers continue to be at the forefront of defamation lawsuits, particularly by public figures –Meaning they bear the brunt of defence costs, at a particularly poor time given their industrys financial condition But independent journalists, bloggers, commenters, and anyone else using social media will increasingly be targets of suits

27 Plaintiff Anonymity Can plaintiffs remain anonymous while they pursue their defamation claims? A.B. v. Bragg Communications –The plaintiff, a 15 year old girl, was allegedly the victim of a hoax in which a fake Facebook profile was made using her photo and name, containing disparaging remarks about her sexual behaviour

28 Plaintiff Anonymity Plaintiff requested a publication ban and use of pseudonym Case pits a teenager who finds herself the victim of on-line bullying against the public's right to be informed by a free and independent press given unrestricted access to open court proceedings.

29 Plaintiff Anonymity Application Judge denied plaintiffs request for anonymity (publication ban and use of pseudonyms): –No evidence the fake profile had any physical, psychological, or emotional effect on A.B. –A publication ban would not serve societys interest in awareness of how social networking programs work and can be destructive to young people

30 Plaintiff Anonymity Plaintiff appeals to Nova Scotia Court of Appeal: dismissed. Court: Defamation is a claim that one's reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court. To be able to proceed with a defamation claim under a cloak of secrecy, strikes me as being contrary to the quintessential features of defamation law.

31 Plaintiff Anonymity A.B. would wish to have her identity shielded from the public, and the fake Facebook profile banned from publication, apparently as a protection from further embarrassment and public scrutiny. But, when A.B. chose to avail herself of the court process in the pursuit of damages for defamation, she submitted to whatever public scrutiny attaches to civil litigation and must accept the attendant diminished expectation of privacy.

32 Plaintiff Anonymity Court concluded: I appreciate that testimony in this case will likely be distressful for [A.B.]. Yet embarrassment must be an unavoidable consequence of an open justice system. The disclosure of very personal information is typical in cases where a plaintiff seeks damages for harm. However, subjective feelings of discomfort cannot be the test for anonymity. If it were, our courts would be flooded with preliminary motions seeking anonymity orders. Supreme Court heard case on May 10, 2012 –Quorum of 7. Closed court (publication ban)

33 Defenses to Defamation Deny any one or more of the three essential elements –Not published –Doesnt identify the complainant –Not defamatory – not capable of being defamatory: e.g. name calling, parody Truth/Justification Fair Comment Responsible Communication Privilege: Absolute, Qualified, Statutory

34 Defenses to Defamation Truth/Justification Applies to statements of fact –Onus on the defendant to prove the truth of the sting – the substance – of the defamatory statements –Must be provably true by the laws of evidence Witnesses Documents –Big downside risk - failure to prove truth results in a higher damages awards and higher costs awards against a defendant

35 Defenses to Defamation Fair Comment Applies to statement of comment, not fact –On a matter of public interest –Based on fact –Recognizable as comment –Fairly made, in the sense that a person could honestly express the opinion based on proven facts –Made without malice

36 Defenses to Defamation Responsible Communication Applies to statements of fact –must relate to the public interest –must have been published responsibly e.g. based upon information a reasonable person would accept as reliable, even though later it may not be possible later to prove the truth of the defamatory statement of fact on admissible evidence e.g. a fair and neutral report of both sides of a dispute

37 Responsible Communication Cusson v. Quan An OPP constable (Cusson) travelled to New York after 9/11 not through his employer presented himself, with his dog, Ranger, as a trained search and rescue team. They werent.

38 Cusson v. Quan

39 Eventually OPP ordered him back to work. He resigned. Cusson was portrayed as a hero in the media. There were reports he saved two businessmen from the rubble. At some point, New York authorities banned Cusson from the WTC site. Ontario press reports he had no K-9 training and that he violated OPP rules by taking his uniform and gun out of the province.

40 Cusson v. Quan Cusson sues. Eventually the Supreme Court decides case (with companion Grant v. Torstar), establishes a defence of responsible communication on matters of public interest Requirements?

41 Cusson v. Quan A. The publication is on a matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff's side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statements public interest lay in the fact that it was made rather than its truth (reportage); and (h) any other relevant circumstances.

42 Malice Defeats some Defenses to Defamation MALICE defeats fair comment, responsible communication (not truth) Malice is established by showing, for example: –Defendant's dominant motive was to injure the claimant, or –Defendant was intentionally dishonest or was reckless as to the truth,or –Defendant acted from an ulterior motive conflicting with the interest or duty giving rise to the defense If proven, malice defeats these defenses and results in a higher damages award and a higher costs award against a defendant

43 Malice in Practice In Astley v. Verdun the defendant Verdun was a shareholder in BMO; plaintiff Astley was a Director Verdun waged a years-long public crusade against Astley, calling him a white-collar criminal who should be jailed for fraud –One vehicle for his publication: shareholder proposals. Bank Act requires they be published in proxy circulars Jury rejected Verduns defence that he was a shareholders rights advocate –He pleaded qualified privilege, fair comment, and responsible communication; all rejected by jury –Found Verdun was actuated by malice; he had an unreasonable fixation on Astley

44 Malice in Practice, contd. Jury awarded $650,000 in damages Plus $215,000 in legal fees Lesson: while malice is hard to prove, if successful, damage awards can be very large provided the defamation was serious, the defendants reputation was strong, and the defamatory publication inflicted major damages to livelihood

45 Damages Damages are assumed in defamation actions; they neednt be pleaded –Statements that lower your reputation in the community are considered inherently damaging without proof of concrete effects But in practice damages range from nominal ($10) to exorbitant ($2.5 million: Hill v. Church of Scientology (2011 dollars))

46 Unpredictable Awards In one 2006 case, Angel v. LaPierre, parents began personal attacks on a website they maintained against a school principal, teachers, and staff. Principal, teachers, staff, and teachers union (ATA) sued. Damage awards ranged from $23,500 (principal) to $1 (teachers union).

47 Criminal Libel Defamation is also a criminal offence Crimes are rarely removed from the Code, so some antique provisions are still in force, though rarely prosecuted –s.59 Seditious Libel – up to 14 years Advocating, without legal authority, the use of force to achieve governmental change within Canada. –s.296 Blasphemous Libel – up to 2 years

48 Criminal Libel If these sections were dusted off, the defence would bring a Charter challenge Of the two criminal libel sections, one criminalizes libel known [by the speaker] to be false (s.300 – 5 years) & the other, s.301, has no knowledge of falsity requirement (2 years) –Meaning one could be convicted of publishing something true but impossible for the defence to prove Courts found this possibility intolerable; s.301 has been struck down as unconstitutional in Newfoundland (R. v. Prior), Ontario (R. v. Gill), Saskatchewan (R. v. Lucas), and Alberta (R. v. Finnegan)

49 Criminal Libel Only written libels can be criminal: s.298(2). Spoken words dont count. The SCC upheld the offence of publishing a criminal libel known to be false (s.300) in 1998 (R. v. Lucas) –Court held a dual tort/criminal prohibition of libel was acceptable, noting we do the same with negligence/criminal negligence In light of the shift in defamation law toward free expression, would a challenge be decided differently today? –Only one justice from that Court remains (McLachlin)

50 Criminal Libel Criminal libel prosecutions are rare, but they do happen A former Drumheller town councillor was recently arraigned on charges of defamatory libel stemming from a Facebook post –Shes elected to have her case heard by a Court of Queens Bench judge and jury –Slated for preliminary hearing in October

51 Criminal Libel Many of the accused in these cases are mentally unstable, often fixated on the defendants and extremely litigious E.g. R. v. Knight. Mr. Knight sent several letters to the Alberta Mental Health Ethics Committee alleging a nurse had sexual relations with and attempt[ed] to extort money from severely disabled patients.

52 Criminal Libel The nurse was Mr. Knights ex-wife. Knight continued harassing her. He was eventually charged with criminal libel under s.300 and convicted. On appeal, Knight presented new medical evidence that he was delusional and not criminally responsible. The appeal was dismissed as the evidence was not raised at trial and it would not prove him NCR in any case

53 From the Supremes An individuals reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy… but nor should an overly solicitous regard for personal reputation be permitted to chill freewheeling debate on matters of public interest. Justice Binnie WIC Radio Ltd. v. Simpson

54 From the Supremes Freedom of expression Vigorous debate Charter s.2(b) – Everyone has… freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Protection of reputation Personal integrity and privacy The good reputation of an individual represents and reflects the innate dignity of the individual, a concept that underlies all the Charter rights

55 From the Supremes..the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online… A review of recent defamation law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media.

56 From the Supremes While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of the new communications media. Chief Justice McLachlin Grant v. Torstar Corp

57 Loss Prevention Employee Be accurate. Golden Rule: If you wouldnt like that said about you, should it be said at all? If an opinion, is it honestly held? Supervisor Check facts. Does the statement concern a matter of public interest? Is it too extreme in content/expression to be credible as an honest view?

58 Internet Usage Policy Policy Overview We provide access to the vast information resources of the Internet to help you do your job faster and smarter. The facilities to provide that access represent a considerable commitment of firm resources for telecommunications, networking, software, storage, etc. This Internet usage policy is designed, to help you understand our expectations for the use of those resources in the particular conditions of the Internet, and to help you use those resources wisely. While weve set forth explicit requirements for Internet usage below, we'd like to start by describing our Internet usage philosophy. First and foremost, the Internet for this firm is a business tool, provided to you at significant cost. That means we expect you to use your Internet access primarily for business-related purposes, i.e., to communicate with clients and suppliers, to research relevant topics and obtain useful business information. We insist that you conduct yourself honestly and appropriately on the Internet, and respect the copyrights, software licensing rules, property rights, privacy and prerogatives of others, just as you would in any other business dealings. To be absolutely clear on this point, all existing firm policies apply to your conduct on the Internet, especially (but not exclusively) those that deal with intellectual property protection, privacy, misuse of firm resources, sexual harassment, information and data security, and confidentiality.

59 Social Media Participation Policy Policy Overview We encourage communication among our employees, clients, partners, and others - and Web logs (blogs), social networks, discussion forums, wikis, video, and other social media - such as Twitter - can be great ways to stimulate conversation and discussion. They're also invaluable tools for clients and potential clients who want to learn more information about Field LLP and the areas of law we practice in. This Social Media Participation Policy applies to: All blogs, wikis, forums, and social networks hosted or sponsored by Field LLP Your personal blogs that contain postings about Field's business, services, employees, clients, partners, or competitors Your postings about Field LLP's business, services, employees, clients, partners, or competitors on external blogs, wikis, discussion forums, or social networking sites such as Twitter Your participation in any video related to Field LLP's business, services, employees, clients, partners, or competitors, whether you create a video to post or link to on your blog, you contribute content for a video, or you appear in a video created either by another Field LLP employee or by a third party. Even if your social media activities take place completely outside of work, as your personal activities should, what you say can have an influence on your ability to conduct your job responsibilities, your teammates' abilities to do their jobs, and our business interests.

60 An Ounce of Prevention… Take Technical steps –E.g.block access to social media from work –Monitor employees Internet access and use Educate Staff and Implement Policies –Internet Usage Policy –Social Media Participation Policy Supervise and Enforce the Policies –Not only on a complaint basis - do spot checks –Take appropriate disciplinary action

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