Have you ever read something online that someone has written about you and found it so negative that you wondered, “How can I take this down?” If so, you are not alone.
Many people are impacted by negative reviews or newspaper postings that seem to stay on the Internet forever. In Europe and the UK, the courts have recognized the right to be forgotten, so in those countries, you can petition Google or other websites to remove a posting, review or even a bad photo that you have been wanting to have taken down forever.
The U.S., on the other hand, has greater protections in place for Internet websites. The Communications Decency Act protects websites from liability as long as they meet the requirements under that Act. Many U.S. states also have anti-SLAPP legislation. These acts, although providing consumers with well needed protection, also make it very difficult for people to have negative posts removed online in the United States.
Canada, on the spectrum of things, is a libel friendly jurisdiction; meaning that if you were to choose a country to bring an action against a website to remove an online posting, Canada would be a good one. In fact, given a choice between the U.S. and Canada, an American litigant will choose Canada to bring that action (I have seen this).
A recent case in Ontario sheds some light on the direction Ontario courts are heading with online postings in a foreign country. The Superior Court of Ontario recently made a decision against an Israeli newspaper, citing defamation against an Ontario resident. Ontario residents can read the article online at Goldhar v Haaretz.com.
Let’s pause for a second and just think about what this decision means for us in Ontario. With the court’s decision, it’s not a leap to say that they are deciding on a matter that has implications in another country. They, Canadian Courts, do not have jurisdiction in other countries. Let us say that the judge awards monetary damages or orders the posting to be removed. The Israel Corporation has no offices in Canada so, to enforce this decision, you must take the matter to Israel. The court in Israel could agree — but could also deny — the Canadian Court’s decision. They may comply and offer cooperation as a “friendly” country but they would have every right to deny action. If you have confidence that you could recover or enforce the decision, then it would make sense to pursue it. Otherwise, this would be a risky proposition.
This particular case is interesting but sets a dangerous precedent (depending on whom you speak to). In my opinion, people are impacted by what is said about them online and companies should not be able to hide behind jurisdiction and be complicit in the harm that comes to a person due to defamation of character. How many courts would be willing to say that, if you defame a Canadian online, then you will be held accountable in Canada? That is the question. A key part of the court’s decision, and one that makes the decision appear fair is that the damages are limited to Canada only. So if only five people in Canada saw the publication, then the damages would be very small.
If you are an online business or have a presence online, should you be asking yourself “Do I need to be thinking about the laws in other countries?”
I think the answer to that is “yes”. Otherwise, you are flying blind.libel