With the advent of Web 2.0 tools such as blogs, Facebook, or YouTube, that facilitate social networking and interaction, it is becoming necessary to take measures to protect one’s good name. A law firm, its clients, or an individual lawyer that becomes fodder for gossip or a deliberate smear campaign can unwittingly lose credibility.
Of course, Canada’s defamation laws are stringent; perhaps even overly so, suggests Philippa Lawson, founder of the Canadian Internet Policy and Public Interest Clinic.
“I would say our defamation laws in Canada have been drafted more to favour the plaintiff,” says Lawson, who prior to launching CIPPIC, was counsel for the Public Interest Advocacy Centre, where she represented consumer groups in telecommunications regulation, privacy, and consumer protection matters.
“I would not want to see any kind of law reform that would provide more fuel for corporations and powerful, wealthy people to silence criticism. I’ve seen cases in small claims court where meritless complaints have left totally innocent defendants out of pocket for a few thousand dollars,” she says.
But Lawson acknowledges that the reach of the web and potential for the reputations of individuals or organizations to incur damage is a growing concern.
She points to controversial sites such as RateMyTeachers, on which youngsters post reviews of their teachers, while the teachers are invited to sign up to “thank your students or defend yourself,” the site instructs.
“I think it’s something we have to think clearly through,” says Lawson of policies that might need to be introduced to minimize the potential for organizations or individuals to be hurt.
“It’s new, empowering technology that some people find distasteful, and maybe not in the end is it all beneficial, but I think that we need to have that debate,” she says of the internet. “This is information that’s available worldwide that years ago would be just available by word of mouth, for example.”
She says the clinic has looked at intermediaries, or the internet service providers, and the extent to which they should have responsibilities or be liable for the defamation of third parties through their sites, “and that’s a really tricky issue.”
Yet on the internet it’s possible to defame an entity or individual anonymously.
“It’s an issue that’s worthy certainly of more discussion, but I wouldn’t want to jump into strengthening defamation,” she says.
On the CIPPIC’s web site under FAQs and Resources, there is a section about defamation and SLAPPS, which stands for strategic lawsuits against public participation, and is used in the context of defamation suits launched simply to stymie criticism without a strong cause of action.
The section affirms, “As an inexpensive and accessible medium of worldwide communication, the internet offers individuals unprecedented new opportunities to publish and share information and opinions.
Messages posted on web sites or in discussion forums have a potentially vast audience, and can be replicated almost endlessly. This means that defamatory statements published on the internet can have wide repercussions for affected individuals or corporations.”
It points to the 2004 case Barrick Gold Corp. v. Lopehandia, in which a Vancouver-based businessman launched what was referred to in court as a “blizzard” of postings on message boards and web sites discrediting Barrick regarding one of its mining properties in South America.
After hearing the matter, the Ontario Court of Appeal ended up increasing a trial judge’s damage award for internet-based defamation, from $15,000 to $75,000, and levied an additional $50,000 in punitive damages based on its determination that the internet defamation had means to cause “instantaneous and irreparable damage to the business reputation of an individual or corporation by reason of its interactive and globally all-pervasive nature,” as well as its potential to be taken at face value.
Barrick litigated the case in the Ontario courts because it is based in Toronto, although the CIPPIC acknowledges the global reach of the internet “has thrown a complicated curveball at the legal world on the question of jurisdiction: When should a court hear a case involving allegedly wrongful activity involving parties in multiple jurisdictions?”
It points out - somewhat amusingly - on its web site resource that someone in Ontario can “post a comment about an Irishman (with a considerable reputation in Spain), on a web site operated by an American but hosted by an English ISP, and those comments can be read by an Australian while on business in Japan. If the comments are defamatory, can the subject of the comments sue, and if so, where?”
Case law regarding jurisdiction is just beginning evolve, with courts around the world moving towards a “targeting” test to determine whether they can assert jurisdiction over any given case depending on the intended audience of the forum, CIPPIC says.
Rather than defamation, it may be that privacy laws in the context of internet-based public forums will soon need attention, says Lawson. “Privacy invasion is really underdeveloped right now. The statutes that we have are very narrowly focused on informational privacy and often just in the commercial context.
They simply don’t cover much of the kind of activities that could be damaging,” she says, citing communications technologies ranging from internet tools to cellphones.
Joseph Fiore, founder of RepuMetrix Inc., a Toronto-based company that provides reputation and brand monitoring services, acknowledges that, based on his own rising volume of clients and their concerns, tracking the web is becoming integral to all aspects of doing business.
“Having some kind of monitoring strategy is important,” says Fiore. “You at least have to devote a few hours each week, even 15 minutes each day, to go on the internet, do a search, and keep on top of things,” he suggests.
Even recruitment initiatives can be adversely affected by opinionated postings of former employees.
“What you want to watch out for also is anyone out there who is trying to smear the firm because they had a bad experience working there,” he says.
“So the idea of keeping the pulse on what’s happening becomes a mainstay of business just because there can be information out there that can seriously harm a lawyer’s reputation or the firm’s.”
He adds that it’s not as easy as simply doing a periodic search of the firm on Google; depending on the scope and size of the firm’s book of business, it should ensure it can track multiple search engines and, ideally, obtain expertise to cover jurisdictions in all its locations.