Internet Intermediary Liability in Defamation: Proposals for Statutory Reform

Abstract

The law of defamation has long been recognized as out of step with modern tort principles. For example, the publication element requires intentionally conveying defamatory content but no authorship or even knowledge of the content is required. Thus, some have referred to defamation as strict liability. The paper re-examines the Canadian law of publication in defamation in the context of internet intermediary liability. Search engines and website hosts have been sued in defamation for content created by users. Courts have struggled with whether such intermediaries are publishers and if so, whether they have an innocent dissemination defence. The defence applies to those whose role in publication is secondary, and who have no knowledge of, and are not careless regarding the dissemination of, the defamatory contents. Instead of internet-intermediary-specific defences, which make a complicated area of the law more so, the paper proposes to modify the publication element of defamation so that it only ever applies to “primary publishers”. “Primary publishers” include authors, editors and commercial publishers. They are more immediately involved in dissemination and have or should have knowledge of the contents. Some courts have suggested that the publication element should evolve to require knowledge of specific words. However, while knowledge is necessary, it is insufficient. If a newsagent were told a newspaper contained a libel and he continued to sell it, at common law he’d be liable. If Google were told that a search result is defamatory, it might be a defamer if it failed to remove it. We argue that this should not be the case. While there should be legal mechanisms for removing certain content from the internet, and penalizing a failure to remove it, a secondary publisher’s failure to remove content should not make it liable in defamation. The proposed change will resolve many of the internet intermediary liability problems while making defamation law fairer and reflecting modern tort law’s emphasis on fault-based liability. This project is being done in conjunction with the Law Commission of Ontario’s defamation reform project.