To Sue or Not to Sue for Defamation: How Are Internet Libel Actions Different from Offline Libel Actions? (Part 1)

  • May 07, 2022
  • David Potts

One day in 1996, I was invited to speak about libel on the internet at a seminar. Naturally, I said yes. Then I asked the lawyers and staff in the office: “What is the internet?” A few months later, on an internet take down motion, I was asked that question by a Judge and tried to explain. At that point, I had been doing almost entirely defamation work for plaintiffs and defendants since 1979 and was co-author of a textbook published in 1985 entitled Canadian Libel Practice. From 1996 onwards, I watched the defamation world change, slowly at first. After 2005, the changes became almost exponential in scope and speed. Today, it is not an understatement to say, “Internet defamation is now the law of defamation.” 

While that observation may be a blinding insight into the obvious in 2022, there is still very little recognition among many lawyers of the differences between internet defamation proceedings and offline defamation proceedings, and even less recognition of the practical consequences of the two forms of defamation proceedings. I have discussed this topic at some length in two chapters of my textbook, Cyberlibel: Information Warfare in the 21st Century. Here, I will simply sketch some of the important characteristics of the internet.

One of the more comprehensive discussions of the distinctive characteristics of the internet and cyberlibel is found in the Ontario Court of Appeal decision of Barrick Gold Corp. v. Lopehandia, 2004, CanLII 12938 (ON CA) at paras. 28–31. The characteristics of the internet that are clearly of importance in cyberlibel proceedings are: its global nature, interactivity, its potential to shift the balance of power in the offline world, accessibility, anonymity, its facilitation of republication, the prominence of intermediaries, its reliance on hyperlinks/hypertext, its long-term impact — the use of permanent archives, its multimedia character, and its temporal indeterminacy.