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When you know it, you are the publisher - website operators responsibility for libel

In the first few moths of 2015, a welcome trend has been introduced by Canada's judiciary with regard to the third party responsibility of website owners for defaming posting on their sites. To put it plainly, we now have a better idea of when, for example, a publisher of a paper, an independant author of a blogs or an owner of an on-line panel is responsible if one of his readers/participants publishes a libelous remark on the website (e.g. under the heading "Comments" on the newspaper's website).

BCCA 398 of Carter v. B.C. Federation of Foster Parents Assn., 2005, the British Columbia Courts of Appeal pointed out that the website owner could be held responsible for the materials published on the website once the website owner has been notified of the allegedly defaming materials but has not taken any measures to delete them.

Citation of Carter as an authoritative assertion that mere reference to an on-line location containing defaming materials does not make you an "editor" of such defaming materials, a finding adopted by the Supreme Court of Canada in Crookes v. Newton 2011 SC 47, in which a simple hyperlink to defaming materials could never lead to functional responsibility for the publication of the materials, is more common.

So while Carter gave us an idea of what could be happening to a website owner who posted slanderous footage on his website, it was not a final authorization. Meanwhile, on the basis of Carter and cases in other jurisdiction, the legal advisors of major website owners had asked their customers to delete libelous materials after they had been notified.

Finally, the courts in Weaver came to the conclusion that the National Post was not responsible for the contents of the reader's commentary, since the National Post had not "published" the contributions, since the contributions had been deleted from the National Post web sites as soon as they became known to the National Post.

284 ] Pending notice, whether through in-house reviews or special appeals made to the National Post or its columnist, the National Post may be regarded as a passive instrument in the distribution of readers' contributions. They have not committed any intentional act which amounts to the endorsement or acceptance of the content of the reader's contributions.

However, as soon as the accused have been made aware of the insulting statements, the accused will be regarded as editors if no immediate measures are taken to process these statements. 285 ] In this case, Mr Racovali could not remember with whom he was talking about the removal of the commentaries, but within one or two working day of receipt of the readers' contributions he stated that he took measures to delete the insulting readers' contributions.

Readers' contributions were clearly insulting. The National Post has no obvious need to maintain jobs with such a vitality. 286 ] Immediate measures must be taken to live up to the obligation not to disseminate slanderous materials. 287 ] Because of the immediate deletion of the insulting readers' remarks once known to the accused, I have come to the conclusion that the accused are not editors of the readers' contributions.

All in all, National Post cannot be responsible for the defaming contents in its readers' commentaries until National Post becomes knowledge of such contents and has been unable to delete the insulting materials either "immediately" or "immediately" after receiving the notification. Notifying Weaver' website owners is therefore quite simple: they are welcome to have "unmodified" comment segments on your website, but once you are alerted to libellous contents, it is better to act quickly to delete these contents or to run the brunt of a negative libel verdict.

Whilst the website operator's complainant in Weaver evaded responsibility because it was not a publisher of the libellous contents, the second of our 2015 libel rulings found that the website operator's complainant was a publisher of the contents, but was not held liable because the contents represented a "fair comment".

Subjects of the forums were finally found to be libellous to the claimant and led to the filing of the libel suit; in reaction to the complaint, the defendant alleged that they were not the publisher of the libellous materials, but merely "the distributors of contents created and published by third parties", and that they "were not written, edited, altered or in any way involved in typing or posting the challenged words".

Baglow Tribunal found that the accused, as editors, are accountable for the defaming contents, as they are the "moderators and administrators" of the board, with the authority to process and remove user posts. Nevertheless, it seems that the Baglow inference that the accused were primarily guilty of slander was revived by the same deliberations found in Weaver (which had been published only a few months before Baglow).

Thus, by bringing Weaver and Baglow together, we seem to conclude that Canada's Slander Act allows website owners to run unmodified discussion boards (in the meaning that user materials can be published without the website owner's previous review),

It is the operator's duty, as soon as they learn that allegedly libellous materials have been postings in their forums, to delete them within a relatively brief timeframe in order to prevent any libel as the publisher of the materials. What is the maximum amount of elapsed for an accused to delete an allegedly libellous remark?

Suppose there is a rational argument about the allegedly defaming character of the contents? Does a website owner have a "safe haven" to deal with the issue, or is he required to take the contents off first and ask later? Do web site owners have a duty to keep their web pages up and running with the technological capability to edit or edit contributions, or could they hide behind a barrier of technological impracticability or complexity (in other words, what if a web site owner has created a web page or a forums that makes it not possible to edit/delete contributions)?

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