Australia continues to lead the way in the consideration of online liability, and it remains to be seen whether Canadian courts will follow its lead, says Toronto litigator and mediator Howard Winkler.
“Australian courts are trending towards the protection of reputation in priority to free expression, as shown in recent decisions,” says Winkler, principal and founder of Winkler Dispute Resolution.
A recent decision by the Supreme Court of New South Wales concerned a man whose treatment in custody attracted nationwide coverage, as well as commentary on the websites of various news agencies. After he was released, the man sued several large Australian media outlets, alleging they were responsible for the comments posted on their Facebook pages. The court agreed, stating, “When a defendant commercially operates an electronic bulletin board and posts material that, more probably than not, will result in defamatory material, the commercial operator is ‘promoting’ defamatory material and ratifying its presence and publication.”
Winkler tells AdvocateDaily.com he was surprised by the decision, noting “It represents a significant extension of the common law and arguably takes it to an unreasonable extreme where it starts to unduly discourage free expression.”