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DEFAMATION AND PRIVACY POLICY

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UNGOVERNABLE’S Defamation Policy

UNG has retained the foremost experts in defamation; specifically defamation in first world countries (like Canada and the United States) and the evolving area of cyber defamation. We provide this information to you for your edification but to promote comments on each blog post in a professional and education manner.

The materials that are published on the Ungovernable  website are published by established journalists who are exercising their right to free speech in a democratic society. In no way are the published words intended to defame anyone or should be viewed in a defamatory light.

The focus is that of journalists publishing articles wherein the journalist feels a duty and/or obligation to publish the article and the public has a duty in receiving them. This is commonly known as qualified privilege which operates as a defence to even the most heinous defamatory comments that can even be false. Moreover, the sting of the articles always is based on truth.

Ungovernable is different in that it reaches out to the object of the article for their position on the article before it is released. We will write directly to the object and seek their opinion.

Further, if you are an object of any article, you may write immediately to us to voice your concerns and we will take them under advisement. We may remove the article if it justifies such a removal pending further inquiry.

Your failure to do so may constitute your acquiescence and acceptance to the article as a truthful. If the article in its entirety is untrue and the journalist does not have one of the defences, then you are at liberty to write to This email address is being protected from spambots. You need JavaScript enabled to view it.  with your stated reasons as to why and we will provide a response. Ungovernable will publicly apologize if you are able to show that it is a defamatory statement without any defences.

We provide the below for your edification but it does not constitute legal advice and you are to seek your own independent legal advice prior to writing to us.

If you are conversant with the law of defamation, the damages are particularly low and court proceedings are a waste of resources for all involved.

The goal of Ungovernable is to provide urgent and serious an publically important news from reliable sources. If we have provided a source for the article, we cite the source. If we have not added anything from the source, then your cause of action, should you have one, will be against that source. To the extent that an article is provide with a tone of humour, then it is meant in that context and take it for that value. If there is something humorous said about you but your opinion is that it is offensive, then that is your opinion.

Therefore, you are to understand the following by reading this site and enter on this basis:

1.     Each article is not a defamatory article per se as it would not lower your reputation in the eyes of a reasonable thinking person when taking into the consideration the context of the article and the medium on which it is being transmitted;

2.     Each article is published by a journalist and entitled to the journalism defence as the content; 

3.     Each article is justified as it is a truthful article;

4.     Each article is published on the occasion of qualified privilege;

5.     Each article is published on the occasion of fair comment;

6.     Each article is published on the basis of the opinion of the publisher to the extent you disagree that it; and

7.     Each article is published without any malice. 

We want people to want to escape their oppressed state. You can only escape your oppressed state by knowing that what oppression is and how you are being oppressed. The articles on this site show the dark underbelly of law, science, religion, politics et al. If you disagree with an opinion article, then voice your opinion and disagree in the comments section. The comments section is moderated to only intelligible and competent conduct. Please use your acumen to allow us all to grow from each other’s intelligence.

We provide the below law to you for your edification but so you do not waste your time paying a lawyer for some legal advice that she or he bills you for so you can pay for their artwork. We all know the rules: never turn your back on a lawyer; and never sign a billable retainer agreement.

If you feel that an article is defamatory about you, to which no defence applies and you wish to have it removed, then put your name on it in writing This email address is being protected from spambots. You need JavaScript enabled to view it.

Further, if you attempt to sue on any point of law above, we will bring an application for security for costs and you will need to post security if you wish to have a multiple week trial. If you do, we will ensure that you disclose all of your assets if you have any. If not, pay your money into court if you are confident to do so.

If you think we are bluffing, you can read the below for your own edification as we know defamation the best in our country and better than your country. This would also presuppose that you knew which country we are in and what type of entities we operate you through. You may have prognosticated from the website that we are Ungovernable and we have escaped the oppression of the law…or at least found ways around it.

If you fail to bring any of the above to our attention, we reserve the right to bring it to the attention of the court.

Welcome to the world's best in publishing and litigation....it is the only time we know to the importance of  "protection"! 

Law of Defamation

Libel vs. Slander

Actionable defamation in the common law existed between the written form which is libel and the spoken which is slander.

 

If one can prove that one has been libelled, and there is no defence for the loss of reputation, the law assumes damages and fixes an amount as compensation. The plaintiff does not have to prove damages for actual financial loss.

 

In slander cases, the plaintiff must prove actual financial loss before damages can be awarded. Slanderous statements are unlike written statements which are permanent and; therefore, do not have as great an impact. In many Canadian Provinces libel and slander have been combined and the distinctions have become moot.

Tort Elements

Liability for defamation is pertinent to numerous internet contexts. The internet user would be found liable for defamatory material they produced directly by posting a web page containing defamatory remarks

Lord Atkin in Sim v. Stretch [1936] 2 All ER 1237, at 1240, a defamatory statement is one which tends to lower a person, "in the estimation of right-thinking members of society." It is not that the statement be made to the person in regard, it must be communicated to another. Tort law protects one's interest in preserving his/her reputation. In Canada, the law of defamation permits actions for libel and Slander against those who seek to damage another’s reputation. In Hill v. Church of Scientology[1995] 2 S.C.R. 1130, Cory J. reviewed the origins of defamation law:

The character of the law relating to libel and slander in the 20th century is essentially the product of its historical development up to the 17th century, subject to a few refinements such as the introduction and recognition of the defences of privilege and fair comment. From the foregoing we can see that a central theme through the ages has been that the reputation of the individual is of fundamental importance.

The offending words, to be defamatory, must tend to discredit you in the estimation of right thinking people generally. The words are capable of a defamatory meaning so in law the falsity of the words is presumed leaving it for the Defendants to establish, on a preponderance of evidence, the words are true or if they are found to be defamatory, are subject to other defences.

To establish a cause of action for defamation, you must prove that the potential defendants made a defamatory statement to a third party regarding him or her. A defamatory statement is any statement that would lower the reputation of the Plaintiff in his or her community in the estimation of “reasonable” persons. Defamation is a strict liability tort and damages are presumed (except for slander that is not actionable per se): Grant v. Torstar Corp. at para. 28; Hill v. Church of Scientology of Toronto1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 164; R.E. Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Toronto: Carswell, 1999), vol. 3 at 25-2, 25-3. Compensatory damages, both general and special, and punitive damages are available in a defamation action. Due to defamation being a strict liability tort, the intentions of the defamer are not relevant

 

DEFENCES TO DEFAMATION

 

Truth or justification

A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence if you sue them for defamation.

If a person publishes a statement which lowers the reputation of another, the law presumes the falsity of the statement and the defendant then has the burden of proving the truth of the statement. If it is the truth anyone is free to say it. However, if the plaintiff consents to the statement being made, he/she cannot later argue they have been defamed. As noted by Klar, actionable defamation only consists in a false statement impairing ones reputation.

Truth (also referred to as “justification”) is a complete defence. However it is an exacting defence and operates under rigorous rules. If a statement conveys a defamatory meaning there is a presumption that the words are untrue. The burden of proof is on the defendant to call evidence that establishes the words are accurate. A wholly unfounded plea of truth – and especially where it is maintained unsuccessfully through to the end of trial – can result in a higher level of damages.

Absolute privilege

There are two main examples of this defence: statements made in Government and statements made as evidence at a trial or in court documents. But this privilege does not apply if a person repeats their evidence outside a courtroom. This defence also allows the fair and accurate reporting of these statements in the media, such as newspaper reports of a trial. People must be able to speak freely in our justice and political systems without worrying about being sued.

They may speak freely without fear of liability for defamation no matter how false or malicious.

Examples of absolute privilege as set out in More v. Weaver [1928] 2 K.B. 520 (C.A), these are statements given in evidence extending to Judges, juries, and witnesses or those made in Parliament. This privilege also extends to the fair and accurate reporting of those proceedings. Canadian systems of justice and parliamentary democracy demand that in such situations participants are free to speak candidly, thus the mind-set and purpose of the speaker become irrelevant.

Qualified privilege

Say a former employee of yours gave your name to an employer as a reference and that employer calls you for a reference. You say, "Well, frankly, I found that this employee caused morale problems." As long as you act in good faith and without malice, and your statement is not made to more people than necessary, then the defense of qualified privilege protects you if the former employee sues you for defamation. You gave your honest opinion and the caller had a legitimate interest in hearing it.

Qualified privilege is a partial immunity which attaches itself to certain occasions. Like absolute privilege, for public policy reasons communications that pertain to the legitimate purpose of the occasion without malice, are excused from liability for defamation. As per Adam v. Ward[1917] A.C.309 at 334 per Lord Atkinson qualified privilege usually arises, "where the person who make [the] communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest to receive it." However, qualified privilege may be defeated only by proof of malice on the part of the defendant. Qualified privilege, then will not protect those statements made with actual or express malice, or for an improper purpose.

In Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 78-80, the Supreme Court of Canada accepted the definition of qualified privilege as follows:

Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself.  It was explained in this way by Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:

…a privileged occasion is…an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.

 

However, unlike absolute privilege, a qualified privilege may be lost.  Justice Cory in Hill set out at paras. 145-6 the two circumstances in which qualified privilege will be lost:

(1) Malice – which includes actual or express malice, publication from an indirect or ulterior motive that conflicts with the sense of duty or the mutual interest which the occasion created, and publication in which the defendant spoke dishonestly or in knowing or reckless disregard for the truth; or

(2) Where the limits of the duty or interest have been exceeded anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.

Fair comment

We all are free to comment – even harshly – about issues of public interest, as long as our comments are honest statements of opinion, based on fact, and not malicious. For example, a newspaper columnist may write that a Member of Parliament (an MP) says he supports equality and equal rights, but he opposes same-sex marriages. The columnist writes that the MP is hypocritical. If the MP sues the columnist for defamation, the columnist has the defence of fair comment. Media articles that accurately report what was said at public meetings are also privileged, unless the meeting was not of public concern and the report was not for public benefit.

Fair comment on matters of public interest is also protected from liability for defamation provided it is based on fact. Such matters fall within two categories; first those in which the public has legitimate interest, i.e. governmental activity, political debate, proposals by public figures, and public affairs. Secondly, pertaining to works of art displayed in public such as theatrical performances, music and literature. Fair comment must be based on fact and these facts must be included in the communication, or indicated with sufficient clarity to lay a proper foundation for the comments being made. However, both the defences of justification and fair comment will fail if the defamatory publication is a misstatement of fact.

 Responsible communication on matters of public interest

In a December 2009 case, the Supreme Court of Canada established this new defence to a libel claim. The court said that journalists should be able to report statements and allegations—even if not true—if there’s a public interest in distributing the information to a wide audience. This defence, which looks at the whole context of a situation, can apply if:

a.     the news was urgent, serious, and of public importance, and

b.    the journalist used reliable sources, and tried to get and report the other side of the story.

The court defined journalist widely to include bloggers and anyone else publishing material of public interest in any medium.

In a December 2009 case, the Supreme Court of Canada established this new defence to a libel claim. The court said that journalists should be able to report statements and allegations – even if they are not true – if there’s a public interest in distributing the information to a wide audience.

This defense, which looks at the whole context of a situation, can apply if:

a.    the news was urgent, serious, and of public importance, and

b.    the journalist used reliable sources, and tried to get and report the other side of the story.

The court defined “journalist” widely to include bloggers and anyone else “publishing material of public interest in any medium.”

The law of defamation protects people’s reputation against false statements. If a person makes a false statement to someone and it hurts their reputation, the libelled person can sue the person who made the false statement for damages.

It is very common for site administrators to remove comments that rise to the level of damnation. We respect your right to free speech and open dialogue about an infinite amount of issues but please keep the comments accurate.

The "Innocence" Defence

Finally, the common law recognizes the "innocent dissemination" defence, which has and will - continue to gain prominence in the context of the Internet. This defence is especially significant in cases of secondary publication. In Canada, rules regarding innocent dissemination are based on older jurisprudence. A person can invoke the defence under three conditions, as stated by Romer .L.J. in the case of Vizetelly v. Mudies Select Library[1902] 2 Q.B. 170 at 180 (C.A.) where it was held that liability could be escaped when the secondary dissemination occurred in the course of business and it can be shown that:

[It is a defence to] a person who is not the printer or main publisher of a work which contains a libel, but has only taken, what I may call, a subordinate part in disseminating it; if he succeeds in showing (1) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him that ought to have lead him to suppose that it contained a libel, and (3) that when the work was disseminated by him it was not by any negligence on his part that he did not know that it contained the libel, then although the dissemination of the work by him was prima facie a publication of it, he may nevertheless, on proof of the before mentioned facts, be held not to have published it.

The three elements outlined by Romer L.J. must be proven to the satisfaction of the jury.(21) The third element, lack of negligence on the part of the distributor is the most difficult to prove. The standard of care imposed must be reasonably proportionate to their duties in the chain of distribution.(22)

 

What is malice?  

 

Malice is commonly understood, in the popular sense, as spite or ill‑will.  However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskeysupra, at p. 1099, "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created.  See, also, Taylor v.. Despard1956 CanLII 124 (ON CA), [1956] O.R. 963 (C.A.).  Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.

 

What effect does an apology have?


A newspaper or a TV or radio station that publishes or broadcasts a libel can limit the amount of the damages they may have to pay by publishing or broadcasting an apology right away.

Although not a defence, pursuant to s.9, newspapers and broadcasters may plead in mitigation of damage that libel was done, "without actual malice and without gross negligence" and that a, "full apology" was made "at the earliest possible opportunity," as per Munro v. Toronto Sun Publishing Corp. (1982), 39 O.R. (2d) 100. Any defaming party can then offer an apology in the hopes of having their damages reduced.

Some relief has been granted where publishment has occurred in error. The Ontario Libel and Slander Act, s.5(2), for example, allows recovery if the alleged libel is, "published in good faith," that it, "took place in mistake or misapprehension of the facts" and a, "full and fair retraction" is published immediately.

 

This is problematic for the Internet as e-mail or newsgroup based publishment may be repeatedly passed on and redistributed causing serious harm despite only being first published for a matter of minutes. This issue of mass publications and the effectiveness of retraction was prominent in the on-line Drudge case. The timing of the apology can aggravate damages as per Good v. North DeltaSurrey Sentinel, [1985] 1 W.W.R. 166.

 

CYBER DEFAMATION

Issue: liability for ISP?

 

The ISP allows the computer owner and write to communicate with a multitude of other computers which form the Internet via cable lines.

Issue: three elements must be proven?

 

For a finding of liability for the tort of defamation in Canadian real space and then as applied to Cyberspace, three elements must be proven:

1.     The claimant (the “Claimant”) must demonstrate that the defamatory charge was published; this does not mean that the defamation must have been printed and distributed, rather it is sufficient that the statements have been communicated to a person other than the plaintiff;

2.     Claimant must establish that the defamation expressly, or by reasonable implication, referred to him/herself; and

3.     The materials must have been false and, in the eyes of a reasonable person, discrediting to the plaintiff.

Issue: is intent required?

 

As noted by Dietrich, it is not necessary for the plaintiff to prove that the defendant intended to defame. Nor must it be proven that the defendant did lower the plaintiff's reputation in the minds of persons accessing the materials and that the plaintiff actually suffered any damages from the defamatory materials.

Issue: is there a reverse onus? Implications of reverse onus?

 

The onus lies with the defendant. As the threshold for what is defamatory is low, the majority of the courts time is spent assessing whether the defendant has one of the defences available.

In Cyberspace, much like real space, the courts will assume that the materials were intended to defame the plaintiff and that the plaintiff has suffered damages.

Slander of Goods

 

Where a person's goods are brought into discredit, rather than suing for defamation, the tort of injurious falsehood or slander of goods would be applied (See Flaman Wholesale v. Firman et al (1982), 17 Sask. R. 305). This tort; however, requires proof of monetary damages. This has become prominent in Cyberspace as disgruntled ex-employees or dissatisfied customers have taken to posting complaints along with defamatory statements on the web. For the plaintiff, this tort is available where: first there was a statement made about the plaintiff’s goods; second that the statement was false; third that the statement was published maliciously (dishonestly with improper motive); and lastly, that the plaintiff suffered special damage.

Dietrich further notes that in Canada, legitimate comparisons between products are generally not actionable. However, the distinction between disparaging comments and truthful comparisons is often a fine one and the test used to identify when a statement constitutes slander of goods involves determining what a reasonable person with knowledge of the facts would conclude. (17) In order to be liable the defendant need not necessarily named the plaintiff or the product(s) directly but rather where an implication will be drawn by the public that the defendant's disparaging comments must necessarily have been referring to the plaintiff's product (for instance when there are only two products in a market).

Q2: What can those harmed do against the individuals committing defamation (the “Potential Defendants”)?

 

Individuals or Corporations (the “Potential Claimants”) may be forced to sue the “Potential Defendants”) for monetary damages for harming their reputation. The Potential Claimants do not have to prove that the people who heard or read the defamation actually believed it. Even if they knew it was false, it can still be defamation. Courts realize that lies can take on a life of their own. The law does not protect people from a personal insult or a remark that injures only their pride; it protects reputation, not feelings.

Q3: What is libel?

 

If the communication is written, then it is libel. Libel is the type of defamation with a permanent record such as a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If the Potential Claimants can prove that someone libeled them and the Potential Defendants do not have a good defence, then a court will presume that the Potential Defendants suffered damages and award the Potential Claimants money to pay for the damaged reputation.

Damages

How do the courts determine damages?

 

In deciding on damages, the Court will consider her position in the community. If the person holds a high position in society, then damages may be higher.

What interests does the law balance?

 

The law protects a person’s reputation but this protection can restrict other rights, such as the right to free speech. The law tries to balance these competing rights. Sometimes, even though someone made a defamatory statement that hurt a person's reputation, the law considers other rights more important. The law allows the following defences for a person who makes a defamatory statement. As stated by Edgerton J. in Sweeney v. Patterson128 F. 2d 457 at 458, "whatever is added to the field of libel is taken from the field of free debate." Canadian law attempts to balance the competing interests. Even though a defamatory statement may have been made and harm to reputation may have occurred, other interests are considered paramount. In such cases, the law provides certain defences for the alleged defamer (the “Alleged Defamer”).

Issue: What three characteristics make the internet different?

 

Global nature

Internet is different from other mediums of communication. When a third party accesses

defamatory posting on the Internet, the requisite element for a libel action of publication has occurred. However, defamation laws vary between nations, but also among provinces and states. Consequently, lawyers must further examine the jurisdiction under which their client should sue and attempt to determine which would render the most favourable decision.(3)

U.S. courts have proven unwilling to enforce defamation judgments from other jurisdictions. Also, the quantum of damages is of central importance in any defamation suit as theoretically, Internet publication reaches millions worldwide.

Interactive nature

A second key characteristic of the Internet is its interactive nature which has led to an increase in defamation opportunities. This occurs because individuals are largely driven by a false sense of communicational freedom that is created by the ease with which users can access bulletin boards and usenets (“Usenets”).

Accessibility

The absence of an effective, regulating body with legally enforceable powers, as well as constantly diminishing connectivity and web site establishment costs have further encouraged this problem.

Issue: what is the publisher’s liability?

 

Anybody can be a publisher on the Internet and in turn can be sued as a publisher. Libel has traditionally been restricted to broadcasters and media with the ability to inflict substantial damage.

Issues: how does anonymity and consequently loss of inhibition affect defamation law?

 

Many Internet users operate under pseudonyms when sending e-mail or posting messages on bulletin boards. This feature, when coupled with Internet access in the privacy of one's own home or office and the interactive, responsive nature of communications, has resulted in a loss of inhibition. This resulting sense of personal security has resulted in businesses becoming targets of damaging defamatory attacks in on-line magazines, competitors' web sites and Usenet newsgroup postings.

 

Issue: liability between writers (the “Writers”) and ISP?

 

Lastly, Internet users cannot be classified as a homogeneous group. The potential liability of those who give access to read, and write to, the Internet such as the ISP's must be separated from the writers themselves.

 

Cyberlibel: Primary and Secondary Publication

Competing Interests and the Courts

As we have seen by the abundance of literature, in a cybersociety, reputation and freedom of expression are becoming increasingly important. Given the laws’ growing interest, protection of reputation is rapidly gaining importance in a technological society. As stated by John Manley, Internet commerce shall total an estimated six hundred and fifty three billion dollars for the year of 2002 with an estimated share of thirteen billion dollars coming towards Canada (although the Canadian Government has plans in motion to raise this amount to approximately twenty billion dollars).

 

Many companies have closed up their physical shops in favour of a purely Cyberspace existence. For these businesses, protection of their reputation on the Internet is paramount. Protection of reputation seems to be gaining prominence over the freedom of expression. As stated in the landmark decision of Hill v. Church of Scientology the Supreme Court of Canada stated that defamation laws are a reasonable limit on free speech in Canada, Cory J. wrote that:

Although much has been very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws...

 

 

In Canada, protection of reputation is facilitated by each province. Liability for publication of a defamatory statement extends to all those who participate in its dissemination; in the example of a newspaper, the editor, the section head, the owner of the newspaper and even the person who participates in its distribution could be held liable. Any individual who knows or should know of the defamatory nature of the statements, or has a degree of control over the dissemination of the statements, is potentially liable. We shall first turn our attention to Primary Publication Liability and then to Secondary Publication Liability for the ISP.

Primary and Secondary Publication Liability

A defendant’s liability depends on the role taken in disseminating an allegedly defamatory statement. The status falls into two categories:

1.     primary; or

2.     secondary.

Issue: active versus passive role?

 

The importance difference between the two is that primary publishers play an active role in dissemination while secondary actors play a passive role.(26)

Primary publishers include radio broadcasters, and newspaper printers and editors. The primary publisher incurs liability for defamation when publishing a statement with the possibility of knowing it is defamatory. However, secondary publishers such as book stores, libraries do not possess the same opportunity to know the content of the material disseminated. A.) Primary Publication Liability

ii.) Newsgroups and the Usenet

Newsgroups are a forum for discussion upon which subscribers post their comments, collectively, known as the Usenet. Therefore, once a comment is posted to a newsgroup it has the ability to be read almost instantaneously in hundreds of jurisdictions by thousands of people.

This area of Internet has enormous libel ramifications and is a prime source for slander of goods and corporate cyber-smears. Quite contrary to the idea of the Internet as a mass distributor of information a libel juror might reasonably question how seriously a plaintiff's reputation has been harmed - in comparison with the widespread damage caused by a broadcast through a printed libel - by the relatively narrowcast bulletin board. Quite the contrary, given the specialised nature of discussions taking place on bulletin boards, such scepticism would be misplaced. Notably, in the academic and economic communities, bulletin boards are often the chosen method of correspondence. Scurrilous bulletin board messages, even if not widely disseminated by conventional mass media standards, may be nicely targeted to achieve maximum damage to a professional or business reputation.

 

B.) Secondary Publication Liability

 

We have looked at individual; however, secondary publication is equally significant. There are many situations where the ISP may be held liable for the defamatory materials of others. As previously noted, those who take part in the original publication and distribution of defamatory materials may be liable to the plaintiff. Given the absence of Canadian law on Cyberlibel, in order to determine the future effects of the international caselaw - which will be later discussed - we must set the backdrop by comparing Cyberlibel and the Internet to analogous realspace situations.

Analogous Examples

i.) HyperLinking by Analogy

In Lindley v. Delman 25 P. 2d 751 (1933) the showing of a libelous letter and issuance of a request to others to visit a place where the libelous statements could be viewed was held to constitute a publication under the definition of defamation. In Lawrence v. Newberry (1891), 64 L.T. 797 a letter to a newspaper referring to a speech containing defamatory content which was published elsewhere attracted liability to the defendant. Similarly, in Hird v. Wood (1894), 38 S.J. 234 (CA) the defendant was merely sitting beside a placard containing defamatory remarks and drew the attention of others to it which resulted in a finding of liability. While these cases are significant in age, they serve to stand for the proposition that simply directing others to defamatory materials may also result in publication liability. Therefore, hyperlinks - upon which the Internet is built - from one HTML document to another could attract liability. However, as noted by Takach, in the U.S. case MacFadden v. Anthony, 117 N.Y.S. 2d 520(Sup. Ct. N.Y. 1952), no responsibility was given to a radio commentator who made an on-air reference to a libelous magazine article. The court concluded that the commentator did not repeat the libel verbatim or in substance, and the words which were actually broadcast were themselves not libelous.

ii.) Bulletin Boards by Analogy

In Bryne v. Deane [1937] 1 K.B. 818 (C.A.) members of a golf club placed a poster containing a defamatory poster on the club’s wall. The defendants, the proprietors of the club, were held liable since they had knowledge of the poster and the power to remove it. Their failure to do so constituted publication. The Court of Appeal held that the failure to remove the defamatory material amounted to publication where its removal was “simple and easy”. Thus, by analogy, it can be argued that postage of defamatory information within a private password protected area of a web site would not relieve participants from liability. However, as noted by Dietrich, the fact that the material was posted in a non-public place may affect the damage award available to the plaintiff.(32)

iii.) Bookseller or Library by Analogy

In the case ofSun Life Assurance Company of Canada v. W.H. Smith and Son Limited(1933), 150 L.T. 211 (C.A.) a retail book dealer claimed that the high output of its stores made it impossible to monitor the contents of the sold product. The Court; however, held that since the managers of the retail outlets routinely read the posters as they were being put up either the managers or head office personnel should have screened the contents for libelous material. The implications of this decision are further discussed in the CompuServe decision in the next section dealing with liability. Would liability then be attached to any ISP who screens or has the potential to screen content? In the case of Vizetelly v. Mudies Select Library Limited,[1900] 2 Q.B. 170 a circulating library made a conscious decision not to screen books because, "it was cheaper for them to run an occasional risk of an action than to have a reader." It resulted in a finding of liability for publishment of defamatory materials. The potential Internet ramifications of this decision could stand for the position that the ISP could be required to take some form of proactive steps to screen their online sites from the defamatory materials. However, we shall look at caselaw which both contradict and support this analysis.

 

Liability: ISP’s, Precedents and Canada

Basis of Liability for Cyberlibel in Canada

Issue:

1.     Distinguishing liability for the Alleged Defamer and ISP?

2.     What is the different liability for carriers versus distributors vs. publishers?

3.     What are the ramifications?

While the individual can be held liable for defamatory materials on the Internet, by analogy so can the ISP. In determining whether there is a basis for liability, one of the most important issues in cyberlibel is whether the ISP, the operators of bulletin boards or the website owners are common carriers, distributors or publishers. The distinctions have significant liability ramifications.

 

Common carriers, such as telephone companies, have virtually no liability in libel as they are required to carry all messages and often their rates are regulated by governmental authorities.

Similarly, distributors, such as booksellers, news vendors and libraries, do not have any libel liability, unless they have been negligent.

 

Publishers, such as newspapers, magazines and broadcasters; however, are responsible and liable for everything that they produce, post and broadcast.

 

Issue: what is the basis for publisher liability?

Their liability is grounded in the fact that they can edit what they wish to include and exclude from their publication. As we shall see, the case law is pushing ISP's into the publisher category.

ISP Services Resulting in Liability

Issue: how do ISP’s act as intermediaries?

 

The role of the ISP is to provide access to the Internet for its clients. Most ISP's categorize their newsgroups by topic and within each topic are more specific sub-topics.

Hence they act as intermediaries between the subscriber and the defamatory material. As we have discussed the Internet presents many jurisdictional problems. These serve to glorify the problems faced by the ISP's.

Issue: how do the jurisdictional and anonymity issues cause pressure to hold intermediaries liable?

 

As noted by Perritt, the inability to answer jurisdictional questions satisfactorily increases the pressure to hold intermediaries liable, because unsatisfactory answers make legal recovery from content originators less likely. He further argues that the Internet's anonymity worsens the position of intermediaries. If the victim cannot identify the originator, immunizing an intermediary leaves a faultless victim bearing the loss. In a speech given at Queen's University, Sopinka J. stated that anonymity will increase the likelihood of holding online service providers liable: "Where the defamatory message is posted by an anonymous user, a court may be reluctant to excuse the service provider and leave the injured party empty handed."

As noted by Iris Ferosie, Usenet's create similar liability issues for ISP's which are shared by newspapers and radio stations except now on a broader spectrum.

 

First, unlike newspapers and radio broadcasters, ISP's receive and "publish" thousands of postings per day.

Secondly, postings are often not purged off of the system and can remain for an extended period of time.

Issue: ISP negligence versus exigency of the volume of information

 

The business of an online service provider is such that the provider rarely has knowledge of defamatory content before the matter is brought to its attention via complaint. Failure to review all content should not be viewed as negligent, but rather as an exigency of the volume of information being transmitted through the provider:

Anyone who has stood in the middle of a room full of electronic boxes and listened to the hum of traffic can tell you that there is little point in making the ISP liable for stored information. 

Issue: contracting out to other software companies?

 

It can be argued then that ISP's have little control over the material they are "publishing." While software such as Cybersitter on NetNanny does exist to locate and block access to material of an offensive or pornographic nature, they are of little use in relation to defamation where there are no specific words or images which can be predicted to attract legal risk.(39) This adds up to a liability time-bomb for ISP, which could substantially affect their ability to operate commercially, unless defence mechanisms are made available to them. The arguments are then put forth under the distinctions listed above regarding the status of the ISP as merely a common carrier rather than a distributor and whether they should have the benefit of the innocent dissemination defence. Two U.S. cases have looked at this situation.

Precedential United States and United Kingdom Case Law

Issue: contradictory verdicts?

 

Two widely discussed U.S. cases have failed to settle the issues of ISP liability as they have resulted in contradictory verdicts.

 

In Cubby, Inc. v. CompuServe Inc. 776 F.Supp. 135 (S.D.N.Y. 1991), CompuServe was sued in response to a message appearing in one of their locally hosted forums called "Rumorville USA." CompuServe had employed a third party specifically to edit and control the forum's content. The third party posted the information once it was edited, with no opportunity for CompuServe to review the material prior to publication. CompuServe thus argued that they were merely a distributor of the information, not a publisher, and should; therefore, not be held liable. The New York court held that CompuServe had, by contract, divested itself of control over postings by users. The court classified CompuServe as a distributor, finding that CompuServe was the functional equivalent of a lending library.

 

However, in Stratton Oakmount v. Prodigy, 23 Med. L.R. 1794 (S.C., Nassau County 1995), the decision went in the opposite direction. On similar facts, a libel action by Stratton Oakmount, arose after an anonymous user posted three defamatory messages on Prodigy's "Money Talk" BBS in October of 1994. The user (who still remains unknown) did not have authorization to access the system, the user gained access by acquiring a former Prodigy employee's identification number. As noted by Potts and Harris, in a motion for summary judgment brought by the plaintiff, the court found that Prodigy was a "publisher" for the following reasons:

a.     Prodigy had held itself out as being a "family oriented" computer network and exercised editorial control over the content of its editorial boards in order to make itself more appealing to certain markets

b.    Prodigy had posted "content guidelines" to its users regarding what Prodigy regarded as proper and appropriate for posting on its bulletin boards.

c.     Prodigy used a software screening program which picked up offensive language.

d.    Prodigy also retained "board leaders" to enforce the guidelines.

e.     Prodigy employed technological means to delete postings that violated the guidelines.

This was enough for the court to regard Prodigy as the publisher of the libel and grant a partial summary judgment. However, on October 24, 1995, Stratton Oakmount announced that it was dropping its US$ 200 million libel lawsuit against Prodigy Online Service. Prodigy had assembled new evidence to show that, since 1992, it had used a computerized keyword search solely to weed out messages containing obscene language, but had not scanned messages for defamatory speech. This evidence, coupled with an apology from Prodigy, was enough to convince Stratton Oakmount to drop the case. Unfortunately, for our analysis, the court did not adopt a standard of liability applicable to ISP's as the suit was settled; however, the decision was never overturned...

 

Issue: ISP liability?

 

The two cases have one poignant distinction: if the ISP chooses to edit or censor its newsgroups, it makes itself a primary publisher, and if the ISP does not edit the Usenet it is a secondary publisher. As labelled by Edwards, such a "head in the sand" approach is an extremely unhelpful message for improvement of Internet services, whereas any user will know, one of the key problems for commercial use is the volume of unedited, disorganised, misleading and often offensive text that must be worked through to reach any useful information.

Recently in Lunney v. Prodigy Services [1998] WL 999836 (NYAD 2 Dept), the New York Court of Appeal threw out a lawsuit against Prodigy regarding forged email and bulletin board postings.

 

The court ruled that the online service could not be held liable for its users' actions. Alexander Lunney, the son of a former New York prosecutor, sued Prodigy in 1994 when an unknown person sent electronic messages using his signature. The plaintiff argued that Prodigy should pay punitive and compensatory damages. Under the common carrier versus publisher distinction the court cited earlier cases involving telegraph and telephone companies and ruled that online services carry the same common-law privileges. The court stated that, "Email is, in substance, nothing but an updated version of the telegraph." Marc Jacobson, Prodigy's senior vice president, said the decision means the service cannot be held responsible for posted messages . He further called it a victory for freedom of expression and stated that the ruling demonstrated that the 1995 decision, "was totally wrong." The United Kingdom courts; however, have come to a different conclusion.

 

In the recent decision of Godfrey v Demon Internet Ltd. (Britain's largest Internet service provider), a British judge potentially curbed online freedom of speech in Europe by holding an ISP liable for postings on its message board. The London High Court judge ruled that Demon Internet cannot claim to bear no responsibility for an allegedly libelous newsgroup posting on its server. Physicist Laurence Godfrey filed a suit in response to a message posted in 1997 to the newsgroup soc.culture.thai. The message, which appeared to be from Godfrey, was actually a forgery. Similar to previously mentioned cases the anonymous originator of the message was not a Demon Internet customer. Godfrey claimed the message contained damaging allegations of a personal nature and thus sued Demon Internet for defamation. He further argued that Demon could not rely on the "innocent dissemination" defense because the ISP had been informed three times of the offending message and refused to delete it from the newsgroup. He thus claimed damages for libel in respect of the posting after the seventeenth of January 1997 when the Defendants had knowledge it was defamatory. 

 

Daniel Lloyd, legal adviser to the British campaign group Internet Freedom, called Godfrey's suit against Demon, "a worrying incursion on free speechÉan ISP is no different than a newsstand or a newspaperÉIf Demon loses the case, it will place an impossible burden on all Isp to monitor the content of Internet material."

 

In his decision, Justice Morland downplayed the significance of the U.S. caselaw raised by the Defence due to legislative differences:

 

"The impact of the First Amendment has resulted in a substantial divergence of approach between American and English defamation law. For example in innocent dissemination cases in English law the Defendant publisher has to establish his innocence whereas in American law the Plaintiff who has been libelled has to prove that the publisher was not innocent."

Also in regards to the availability of the innocent dissemination defence Justice Morland referred to the Consultation Document where it was stated that:

 

"2.4 The defence of innocent dissemination has never provided an absolute immunity for distributors, however mechanical their contribution. It does not protect those who knew that the material they were handling was defamatory, or who ought to have known of its nature."

Justice Morland also commented on the categorization of an ISP as either a distributor or publisher:

 

"In my judgment, the Defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the Defendants customers accesses "soc.culture.thai" and sees that posting defamatory of the Plaintiff there is a publication to that customer. In my judgment at English Common Law Prodigy would clearly have been the publisher of the practical jokers message and therefore Lunney does not assist the Defendants."

The judge then stripped Demon Internet of the "innocent dissemination" defense under Great Britain's 1996 Defamation Act:

 

"As from the 17th January 1997 they knew of the defamatory content of the posting, they cannot avail themselves of the protection provided by Section 1 of the Defamation Act 1996 and their defence under Section 1 is in law hopeless. Therefore the Plaintiffs summons to strike-out succeeds."

The judge; however, accepted an appeal request from Demon Internet immediately following the decision.

 

Issue: republishing liability?

 

This means that republishers cannot claim a defence in the fact that they did not originate the material; nor in the fact that they published the material believing it to be true.

 

Issue: ISP liability acting as mere conduits?

 

There is no liability under Canadian law for individuals who, "act as a mere conduit for the dissemination of defamatory information."

 

Thus, individuals have the defence that they were playing a "subordinate role" in disseminating defamatory material.

 

As we have noted, such subordinate players include, "vendors of books, magazines, and newspapers, or carriers, and librarians."

 

As such they may argue that they were not "publishers" of the material, but rather that they were "innocent disseminators". The existing law of innocent dissemination is based on the English decision of (as discussed under Defences) Vitzelly v. Mudies Select Library Ltd.[1900] 2 Q.B. 170 at 180 and is nearly one hundred years old. This case was adopted into Canadian jurisprudence when it was quoted with approval inNewton v. Vancouver (1932) 46 B.C.R. 67 at 75, which held that:

 

The defendant in the defence of innocent dissemination will succeed if the defendant shows:

i)              That he was innocent of any knowledge of the libel contained in the work disseminated by him;

ii)             There was nothing in the work or the circumstances under which it came to him or was disseminated by him that ought to have led him to suppose that it contained a libel; iii) That when the work was disseminated by him it was not by any negligence on his part that he did not know that it contained the libel, then, although the dissemination of the work by him was prima facie a publication of it, he may nevertheless, on proof of the before mentioned facts, be held not to have published it.

Issue: what is the Canadian test?

 

The Canadian test, therefore, to determine: whether the distributor had knowledge or was negligent in failing to ascertain that the disseminated material contained defamation. A ruling in Canada on ISP liability then would likely follow the Demon case. As noted by Randy Pepper, a lawyer with the Toronto-based firm Osler, Hoskin and Harcourt, "What this does is, in my view, demonstrate exactly how a court in Canada is likely to approach this issue."

 

 

PRIVACY POLICY

 

Effective June 2002

At UNGOVERNABLE , we pride ourselves on keeping your personal information in strict confidence as that is a cornerstone of our business and an integral part of our commitment to service excellence with your needs at the forefront. This OPS or online privacy statement provides you with the requisite detail about we  explains how we collect, use, share and protect personal information collected through your online activities including through the use of any UNGOVERNABLE  website, communications or other online or electronic technologies such as e-mail and mobile applications. It is consistent with our UNGOVERNABLE  privacy principles and is in addition to our internal privacy policy and the terms of your agreements with us.

In this Online Privacy Statement or OPS:

“UNGOVERNABLE ”, “we”, “our” and “us” means collectively UNGOVERNABLE  and its affiliates that offer our products and services.

Personal information” or “information” means information about an identifiable individual such as name, email or user identifications. 

What We Collect and How We Collect It

The type of personal information we collect will depend on various factors including your online activities with our company. We may collect information in the following ways:

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How We Use Information

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We may also use location information to personalize your user experience including through website content, marketing, or offers for products and services. For example, we may use general geographical location derived from your IP address (e.g., city and country) to customize UNGOVERNABLE website pages for you. We do this as an explicit benefit to you.

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Protecting the security of your personal information and the financial transactions you conduct online is of utmost importance to us and for you. We use multiple layers of protection when you access any of our online products or services, such as UNGOVERNABLE payment options, including:

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Web technologies

UNGOVERNABLE uses various web technologies, including web beacons and cookies.

Web beacons are tiny graphic images we may place on our website pages or in our emails. They may be used to measure such things as response rates to our communications and to help us to improve our web pages and promotions.

A cookie is a small file created by a web browser on your computer when you visit a website or a particular page on a website. Cookies collect and store information based upon browsing patterns or information you provide. UNGOVERNABLE uses the following types of cookies on its websites:

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§  We may use this information to improve our service, provide a better experience for visitors to our websites, and deliver online personalized marketing and offers.

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Your Privacy Choices

Cookies:

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Depending on the web browser you use, you may be able to configure it to accept session cookies but disable persistent cookies (with the exception of Flash cookies). If you do this, you will still be able to use UNGOVERNABLE websites, however your browser will not remember your personal preferences (e.g., language preference) when you return to the site. Please check your browser’s online help for further information on how to change your cookie settings.

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Location Information:

UNGOVERNABLE cannot collect or use certain types of location information from GPS or proximity technologies on your mobile device if the location services on your mobile device are disabled. Mobile devices allow users to disable location services through menu options. Please consult your mobile device provider for more information.

Changes to Our Online Privacy Statement

 

This Online Privacy Statement or OPS may be updated from time-to-time in order to reflect changes in our online information practices.

We encourage you to periodically check our OPS to ensure that you are aware of the most recent version.

Please be cognizant that none of the above can be construed as business, accounting or legal advice.

We value your business and enjoy the shopping experience!

ESCAPE YOUR OPPRESSED STATE….

 

 

 

Defined

We define Ungovernable like the dictionaries (we are amenable to follow when its appropriate to do so): "escape the control".