Backgrounder
The Internet has changed the landscape of Canadian media law, but the rules that govern what appears in the traditonal media also apply online. A primer on defamation law, publication bans and copyright on the Internet, as well as the restrictions on accessing child pornography.

Online defamation

Posting a libellous statement on a website or to a newsgroup or listserv carries the same risk of legal action as publishing it in a newspaper or broadcasting it on radio or television. Even a derogatory statement made in an e-mail message could become the subject of a defamation action; if the message is circulated to at least one other person, it has been published for the purposes of defamation law.

Anonymous postings offer no protection – Canadian courts have ordered Internet access providers to disclose the names of account holders who have posted libellous statements. The owners and operators of websites may also be responsible for defamatory statements they host on their sites. As well, website owners, webmasters or bloggers who provide a hypertext link to defamatory statements on another website may be open to legal action.

The responsibility of Internet service providers or ISPs – the companies that provide Internet access or host bulletin boards and newsgroups – is less clear. Someone who unwittingly distributes a libel cannot be sued if there was no reason to suspect the material was defamatory and the distributor took reasonable measures to avoid being a conduit for the libel. While ISPs cannot be expected to screen every message they process, the courts may expect them to monitor postings from users with a history of making abusive statements or newsgroups that tend to attract defamatory statements. Once notified of the existence of defamatory statements, an ISP must take prompt action to remove them.

A key factor in Internet defamation is where the damage to reputation occurs. A Canadian writing for an online publication based in another country, for instance, can be sued here for defaming someone who lives in Canada. When a writer based in another country uses the Internet to attack a Canadians reputation, our courts have asserted their jurisdiction to hear the case.

Publication bans and the Internet

Publication bans and other restrictions on publicizing court proceedings apply to websites and Internet postings that originate within Canada. American journalists, accustomed to few restrictions on pre-trial coverage of cases at home, often report banned names and evidence with impunity when reporting on Canadian cases. In most cases, enforcement is impossible. Writers and publishers can be prosecuted for contempt or breaching a publication ban only if they are in Canada or agree to come here to face charges.

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Some judges have barred foreign journalists from their courtrooms to keep banned information from reaching the Internet. A Canadian media outlet risks being charged with breaching a publication ban if it draws attention to American websites where banned evidence can be found, or creates a hypertext link to reports containing banned information.

Copyright and the Internet

Despite the ease of accessing and copying material posted on websites, works posted on the Internet remain the property of their creators. The concept of fair dealing enables material to be copied for private study or research purposes if the source is attributed, but Internet users must seek permission if material is republished or used for commercial purposes. Some websites include a notice specifying that their contents can be used for educational or other non-commercial purposes without formal authorization.

Clickable links allow web surfers to skip from one site to another with ease. But links could infringe on copyright if they are made to material deep within another website. Links to the home page of another site are acceptable, but permission should be sought before making deeper links to pages within a site. A related practice, known as framing, provides links to other websites but displays the content within the page design or “frame” of the initial site. Framing has obvious copyright implications because outside content is incorporated into the site providing the link, making it appear to be part of a single site. Frames should be designed to ensure that Internet users are not misled about the source of the content.

Messages posted on newsgroups, listservs and bulletin boards fit the definition of literary works under copyright law. Even though they are displayed in a public forum, such postings should not be reproduced or republished without the authors consent. An e-mail message is also subject to copyright and the author may not intend that its contents be made public.

Online child pornography

The Criminal Code makes it an offence to transmit, distribute or sell child pornography or to possess such materials for the purpose of distributing them. It is also an offence to access and view child pornography on the Internet (Criminal Code, R.S.C. 1985, C-46, s. 163.1 (3), (4.1), (4.2). Child pornography is defined as the depiction of children engaged in sexual activity or written or visual material that advocates sexual activity with a person under the age of 18. A writer who uses the Internet to view or download child pornography – even while researching an article or book on the subject – risks being prosecuted for possession of the material. While the Criminal Code offers a defence if material has been accessed for research purposes, there is no guarantee a judge will accept a claim that images were collected for professional purposes rather than personal ones. A person who provides a link to a website that displays child pornography could be charged with distributing the material.

– Compiled by Dean Jobb. Updated January 2007.