Until very recently, news media and other forum hosts have been coping with a significant yet ill-defined area of Canadian law concerning their liability for third party user-generated content posted by their readers.

Weaver v. Corcoran, 2015 BCSC 165 is the first Canadian case to explicitly address whether the operator of an internet forum is liable for reader comments that may be defamatory of specific individuals.  The answer is no, unless the operator or forum host is aware of the comments and does not act immediately to remove them.

In the case, Dr. Weaver, a Canadian climate scientist and professor at the University of Victoria (and currently, B.C. MLA and deputy leader of the Green Party) sued the National Post for its own columns as well as responsive reader comments published on the National Post’s internet forum which “attacked the plaintiff’s character in a vitriolic manner”.   The practice of the National Post was not to actively moderate comments but instead, it relied on Terms of Use which prohibited defamatory and other such content, and it responded once a problematic post was brought to its attention.

The Court accepted as a fact that (1) the National Post had a passive instrumental role in the dissemination of the reader comments, but took no action amounting to approval, adoption, promotion or ratification of the content; and (2) once employees of the newspaper became aware of the defamatory nature of the specific comments, the comments were then removed from the website within 1-2 days. In these circumstances, the Court found there was no need to consider defences to defamation such as innocent dissemination since there was no “publication” by the National Post.

The case will be welcomed by forum hosts whose choices until now were to pre-vet every post or hopefully be able to rely on one of the defences to defamation such as truth, fair comment or the poorly defined (at least in Canada) defence of innocent dissemination.

The take-away is that on top of explicit terms of use, a complete hands-off approach paired with a prompt response to complaints, relieve the forum host from a finding that it is a publisher for defamation purposes.

Going forward, it will be interesting to see what time frame is determined sufficient for an “immediate” response in other cases and whether the volume of comments on the National Post site versus another site will be a factor for consideration.