One of the difficult things to predict with regard to the use of social media in the employment setting continues to be the extent to which traditional legal claims apply equally to new social media outlets.   We continue to advise employers that it is imperative to ensure that care is also taken to create policies and train employees on the use of social media in and out of the office setting, and not to let the informality and ease of the Internet lull employers into a false sense of security.   On July 22, 2010, a New York Supreme Court Judge applied the tort of defamation to statements on Facebook in a case that offers an important message to employers.

The case of Finkel v. Dauber (New York Supreme Court, Nassau County) centered on statements posted by a Facebook group known as “90 Cents Short of a Dollar.” Plaintiff alleged that she was defamed by the group’s postings that stated “unbeknownst to many, [plaintiff] acquired AIDS while on a cruise to Africa” and then “persisted to screw a baboon which caused the epidemic to spread.”   The postings further defamed plaintiff, she alleged, by stating “[w]hile in Africa she was seen fucking a horse.”   And other intelligent banter.

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I was recently introduced to a great new Scrabble word: “meme”. According to wikipedia, my source for all things “e-”, a meme, in reference to the Internet, is ‘the propagation of a digital file or hyperlink’ that contains content consisting of a saying or joke, a rumor, an altered or original image, a complete website, a video clip or animation, or an offbeat news story, among many other possibilities. In other words, an Internet meme is an inside joke that is shared between a large number of Internet users.

Internet memes have a tendency to evolve and spread extremely swiftly, sometimes going in and out of popularity in just days. They are spread organically, voluntarily, and peer to peer, rather than by compulsion, predetermined path, or completely automated means. The term ‘meme’ can refer to the content that spreads from user to user, the idea behind the content, or the phenomenon of its spread.

Ally McBeal fans may now appreciate the reference to the dancing ‘oogachucka’  baby. In an effort to be a bit more up-to-date in my meme references, I’ve embedded some of them, below.  If you’re seeing them for the first time, you may experience the ‘lightbulb effect’ – that is, you’ll actually get the joke behind certain late night comedy skits that just didn’t seem all that funny.

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His name is Ghyslain Raza, but you may know of him as “Star Wars Kid”, a portly 15-year-old student at a Quebec private high school who had filmed himself wielding a mock light saber, pretending to be a Star Wars character in combat. The two-minute video was supposed to be private, but he left it lying around at his school where three students, who did not know the teenager, came across the video, posted it on the Internet on April 14, 2003, adding a message inviting people to make insulting remarks about the clip.

Unfortunately for him, it wasn’t just his friends who found the footage so amusing. The video went ‘viral’. One Web log that posted the video was allegedly downloaded 1.1 million times, and by October 2004 one Internet site dedicated to the video had recorded 76 million visits. According to UK marketing firm The Viral Factory, it became the most downloaded video of 2006. So mortified was the teenager that he dropped out of school and finished the semester at a psychiatric ward. According to the student, “It was simply unbearable, totally. It was impossible to attend class.”  More than 35 other revised versions of the video clip, created by other people, have found their way to the Internet, with additional sound and visual effects.

This is an extreme but far from unique example of the devastation wrought by cyber-bullying, the term given to internet conduct in which students harass other students by e-mail and on the internet. Given the potentially devastating consequences of cyberbullying, should schools have the power to discipline their students engaging in this form of harmful conduct?

A major issue confronting school boards is that cyberbullying usually does not take place at school, although its effects can later reverberate among students during school hours. Students may post offensive material from home, or other times outside of school hours, but the targets are fellow classmates. Is it appropriate for a school board to discipline a student for posting such material simply because the postings are being accessed by other students at school or target other students?  At the same time, with power comes responsibility – if school boards have the power to discipline students for their behavior outside of school, are schools then to be mandated with the responsibility to essentially monitor and censor the world-wide web? Just how far should a school board’s jurisdiction extend regarding inappropriate off-school student e-conduct?

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The issue of defamation on the internet is an interesting one because, perhaps contrary to intuition, the tort of defamation is generally considered to occur in the location where defamatory material is accessed, rather than where it is published. Dow Jones & Company v. Gutnick, a 2002 decision of the High Court of Australia, was the first case to reach a final court that considered the nature of defamation on the Internet. Dow Jones, a US company, allegedly defamed an Australian businessman in an article on the Internet. Dow Jones argued that the suit should be heard in the US, not Australia, because that is where the article was uploaded. They argued that the Internet, being such a revolutionary development in communications, deserved a new legal response; that the High Court should develop a global theory of defamation liability. The High Court declined to do so, holding that long-established principles of Anglo-Australian defamation law were applicable to online defamation. Canada appears to have followed suit.

The consequence is that regardless of whether online defamatory material has been posted and hosted in the United States, case law developments with respect to internet defamation in foreign jurisdictions may be quite relevant in determining the liability of a U.S. resident for posting defamatory content.

For a good review of the Dow Jones case, see A Result Contrary to Intuition: Defamation on the Internet and the High Court of Australia.
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In actions for libel and slander, “publication” refers to the communication of defamatory material to a third person. Does hyperlinking to a website containing defamatory material amount to publication of that material in the eyes of the law?

This was the issue that was recently considered by the B.C. Court of Appeal in the case of Crookes v. Newton, the first case at the appellate level in Canada to consider whether the creation of a hyperlink to a site that contains defamatory material can make the creator liable for the defamatory material.  The plaintiff, Mr. Crookes, claimed that he was defamed in various articles that first appeared on the Internet in 2005. The defendant, Mr. Newton, put up a post on his website under the heading “Free Speech in Canada”, and inserted hyperlinks to webpages that contained the defamatory articles. Significantly, Mr. Newton did not reproduce any of the content from the articles, nor did he comment on them in any way. The relevant post excerpt  (hyperlinks omitted) is as follows:

Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes. We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future.

When Mr. Crookes learned of the post, he asked Mr. Newton to remove the hyperlinks, but Mr. Newton refused. Mr. Crookes then sued Mr. Newton, taking the position that by creating the hyperlinks, Mr. Newton became a publisher of the impugned articles found at the hyperlinked websites. Mr. Newton brought a motion for summary judgment, arguing that that Mr. Crookes could not prove that the hyperlinks were brought to the attention of a third party and therefore “published”. Mr. Crookes was able to prove that Mr. Newton’s site had been accessed 1,788 times, but he could not prove whether any visitors to the site had ever clicked on the hyperlinks leading to the webpages containing the defamatory articles.

Mr. Crookes argued that there should be an automatic presumption of publication of the hyperlinked articles – such a presumption exists with respect to defamatory content in newspapers or broadcasts to the general public through the operation of ss. 2 and 12(2) of British Columbia’s Libel and Slander Act which provides:

s. 2. Defamatory words in a broadcast are deemed to be published and to constitute libel. 

s. 12(2).  The publication of a printed copy of a newspaper is proof, in the absence of evidence to the contrary, of the publication of the printed copy.

The Court refused to apply such a presumption, holding that since there is no such statutory provision in Canada providing for the presumed publication of communication distributed through the internet, it should be up to the Legislature, rather than the courts, to create such a presumption. Nor would the majority of the Court infer publication from the fact that Mr. Newton’s site had received 1,788 “hits”. Justice Saunders, speaking for the majority, noted that there was no evidence adduced with respect the volume of “hits” here compared to the norm, the usual behavior of internet readers or “surfers” or the jurisdiction in which they resided. As a result, there was insufficient information on which to infer that the hyperlinks had been accessed at all, let alone by Canadian viewers.

The court concluded that the mere fact that Mr. Newton hyperlinked the impugned sites did not make him a publisher of the material found at the hyperlinked sites. The Court referred to the 2005 case of Carter v. B.C. Federation of Foster Parents Assn., where it had held that a reference to a website in a printed newsletter, where there was no element of control by the defendant over that website, did not amount to publication of the defamatory material found at that site. In that case, a group of defendants had prepared a written newsletter which contained an internet address for an internet chat room which posted defamatory material, with the comment that “more news” could be found at that address. The Trial judge found that the reference in the written newsletter did not in the circumstances amount to publication by the Federation of the defamatory materials found at that site.

In this case, Mr. Newton advised that he saw the hyperlinks “as the equivalent of a footnote or biographical reference”, and the majority of the Court of Appeal agreed. The majority of the court found that there was no substantial difference between referring to a web address in a written article and a mere hyperlink; both required a decision on the part of the reader to access another website, and both required the reader to take a distinct action. Further, in this day of rapidly changing technology, the court was not persuaded that it would take any less effort to access a hyperlink than a web address in an article. Thus, according to the majority, if it is apparent from the context in which the hyperlink is used that it is being used merely as a biographical or similarly limited reference to an original source, without in any way actively encouraging or recommending to the readers that they access that source, then this would not amount to publication. However, the footnote analogy is not a complete answer to the question. If a hyperlink served as an invitation or encouragement to view an impugned site, or in some way adopted a portion of its contents, the hyperlink could be defamatory. For example, a statement that “The truth about [Person X] is found here, where “here” is hyperlinked to defamatory content may be sufficient to constitute defamation. Thus, the issue of whether a hyperlink promulgates defamatory content will require a contextual, fact-specific analysis.

(Of course, therein lies the rub. The majority of the Court did not see encouragement in Mr. Newton’s post, likening the links to a footnote for a reader or card index in a library. The dissenting judge was of the view that the context of the post served as an inducement to readers to click on the hyperlink).

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