Ontario Court Finds Cyber-Libel More Pernicious

An Ontario lower court has ruled that a man who used e-mail to disseminate statements to colleagues that imputed dishonest and reprehensible conduct on the part of an archaeologist disparaged her and her profession. In the case of Ross v Holley, [2004] OJ 4643 (Sup Ct), Justice Low noted that defamatory statements occupy a continuum ranging from those made in a bona fide (though wrongly held) belief that the statement is true to defamatory statements made knowing that they are untrue and with the express intent to bring the subject into hatred, ridicule, contempt and to destroy the subject's reputation in society. Justice Low found that there was no evidence that the defendant believed the statements he made to be true and that he had acted with malice. Noting that the mode and extent of publication are significant considerations in the assessment of damages in Internet or "cyber-libel", the Court found that it could be distinguished from other media because it is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks will be believed. The Court referred to the Ontario Court of Appeal case of Barrick Gold Corp v Lopehandia (see E-TIPSâ„¢ Vol 3 No 1, June 23, 2004, "Ontario Court Finds Defamation More Blameworthy When Online") as "very instructive", but noted offsetting differences in the two situations. In the Ross v Holley case, the libel was of an individual, not a corporation, a factor which could lead to augmented damages. Conversely, the fact of publication by e-mail to colleagues, such as that in Ross v Holley, could be less harmful than publication via a web site, as in the Barrick case, since a web site may experience millions of "hits" on an ongoing basis and thus give rise to millions of publications. In granting judgment, Justice Low awarded general damages in the amount of $75,000 and aggravated damages in the amount of $50,000. The case is not yet available on the Canadian Legal Information Institute web site (www.canlii.org) but no doubt will be found there soon. The reasons for judgment in the Barrick case can be found at: http://www.canlii.org/on/cas/onca/2004/2004onca10786.html. Summary by: Jason Young