On both sides of the border, the cyberlibel landmines are many, and the pitfalls can be grave if not understood.
There are also differences in terminology and meaning when comparing the American and Canadian approaches to defamation law. In recent years, we have seen many cases where American counsel needed to understand the nuances of Canadian defamation law before deciding whether to commence or continue (if acting for a defendant) litigation in Canada, or the U.S., For now, note these takeaways:
- The First Amendment has no application in Canada. Neither does the seminal case of N.Y. Times v Sullivan 376 US 254 (1964). This decision held that the Constitution (the First Amendment) prohibits a public official from recovering damages for a defamatory falsehood related to his official conduct unless there is proof of actual malice;
- Similarly, the public figure defence; the Constitutional protection of anonymous publications, and s.230 of the Communications Decency Act have no application in Canada. (The C.D.A states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider);
- Canadian Defamation law, with a few exceptions and differences, is similar to defamation laws of the U.K. and Australia and U.S. libel law prior to N.Y. Times v Sullivan. The defendant, not the plaintiff, must prove the truth of the statements or allegations they have published. Upon proof of publication, presumptions of malice in law, falsity, and damages at large arise;
- Express malice in Canadian law, which is relied upon to defeat the defences of fair comment and qualified privilege, is completely different than constitutional express malice in U.S. libel law;
- Pleadings are of pivotal importance in Canadian libel law and can make or break a case;
- Intermediaries, like Google and Facebook, have only a “qualified immunity” in Canada: not “absolute immunity”, as under s. 230 of the CDA in the United States;
- To add to the confusion, Ontario and British Columbia have anti-slapp legislation, as do many states in the US. However, this U.S. legislation, not surprisingly, is different in substance and practice from the Canadian anti-slapp legislation.
In this new era of cyberlibel, Canada may well prove to be a great option for the commencement of proceedings or, at least, the application of the law of Canada. In many cases, our approach to defamation law may be a decided advantage.