The recent decision of the Supreme Court of British Columbia in Weaver v. Corcoran considers important legal principles applicable to Internet defamation, including rules regarding an Internet publisher’s liability for reasonably anticipated redistribution of defamatory statements and rules regarding a website operator’s liability for defamatory reader comments posted on the website. The decision is important for all Internet publishers and operators of websites that publish user comments.

Background

Weaver v. Corcoran, 2015 BCSC 165, involved a dispute over a series of National Post articles (published in both print and online) about global warming. The articles referenced the plaintiff, a university professor and an expert on climate change. The plaintiff claimed that the articles contained blatantly false and defamatory statements about him. The National Post did not comply with the plaintiff’s demand for retractions/ apologies and withdrawal of the articles from the Internet. The plaintiff then sued the publisher of the National Post and four journalists for defamation based on the articles (as originally published and as extensively republished on other websites and by email) and related comments posted by readers to the National Post website. The defendants vigorously defended against the plaintiff’s claims.

Defamation

The court held that the four articles defamed the plaintiff because an ordinary person reading the articles would infer that the plaintiff had been deceitful and was incompetent, inept and unethical. The court held that the articles had impugned the plaintiff’s integrity and credibility and thereby damaged his personal and scientific reputation. The court rejected the defendants’ argument that the defamatory statements were not about the plaintiff. The court rejected the defendants’ argument that each article should be considered an independent publication rather than a series of publications for which all defendants were jointly and severally liable. The court rejected the defendants’ defence of fair comment because the factual foundation of the articles was distorted or false. The court held that the defendants were careless or indifferent to the accuracy of the facts in the articles, but did not act with malice.

Liability for Distribution/Republication

The court accepted the plaintiff’s argument that the defendants were liable for the extensive distribution and republication of the articles over the Internet. The court applied the established legal principle that an original publisher of a defamatory statement is jointly and severally liable for a republication of the statement that is authorized by the original publisher or is the natural and probable result of the original publication. The court noted that the National Post website invited readers to email, twitter or send the defamatory articles to friends, and held that in the circumstances that was sufficient to make the National Post liable for the republication and distribution of the defamatory articles.

Liability for Reader Postings on Website

The court rejected the plaintiff’s argument that the National Post was liable for defamatory comments about the plaintiff that had been posted to the reader comment area on the National Post website. The court held that the National Post was not a publisher of the reader comments when the comments were first posted to the website because the National Postwas not aware of the defamatory content of the comments and played a passive instrumental role in their publication - the National Post did not take any “deliberate action amounting to approval or adoption” of the comments. The court indicated that the National Post would nevertheless have been considered a publisher of the reader comments if the National Post had not removed the defamatory reader comments immediately after becoming aware of them, whether by internal review or a specific complaint brought to the attention of the National Post or its columnists. Nevertheless, the court held that the National Post had acted promptly and did all that it could realistically do in the circumstances by removing the defamatory comments within one or two days after becoming aware of them. Because of that finding, the court did not consider the potential defences of innocent dissemination or fair comment raised by the defendants regarding the reader comments. The court noted that it is still early days in the consideration of the impact of the Internet on defamation jurisprudence, that “there is likely room for a nuanced approach when considering the emerging issues”, and that as technology progresses the answer to the issue of website operator liability for defamatory reader postings might be different.

Remedies

The court awarded the plaintiff $50,000 in general damages. The court refused to award aggravated or punitive damages because the defendants did not act with malice. The court ordered the defendants to remove the offending articles from the defendants’ electronic databases and Internet sites, to expressly withdraw consent previously given to third parties to re-publish the articles and to require third parties to cease republication. The court also ordered the defendants to publish a complete retraction of the defamatory statements in form and content agreed to by the plaintiff or directed by the court.

Comment

Weaver v. Corcoran is an important reminder of basic legal principles regarding defamation and their application to Internet publications and websites. In particular, Weaver v. Corcoran indicates: (1) a publisher of a defamatory statement will be liable for a republication or distribution of the statement if the republication/distribution is the natural and probable result of the original publication; and (2) an operator of an Internet website will be considered a publisher of a defamatory comment posted by a user on the website if the operator plays an active role in the initial posting of the comment or fails to remove the defamatory comment promptly after becoming aware of the comment.