Weaver v Corcoran 2015 BCSC 165

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Note

The court concludes that as long as defamatory reader comments are removed promptly after being brought to the attention of the host site, there has been no publication, and there is no need to consider the defence of innocent dissemination.

Decision Summary

This appears to be the first decision in Canada that deals directly with reader comments, and (assuming the decision stands) it is helpful for media that have a notice-and-take-down policy for reader comments.

Madam Justice Burke states at para 275:

I agree, as argued by the defendants, that the cases appear to establish the requirement to show an active or deliberate act in making defamatory information available to establish liability. This appears to be a consistent approach in a number of English cases which have grappled with the issue. The one concern, however, is how this jurisprudence can be applied to the National Post, which is a content provider, not simply an Internet Service Provider (“ISP”). While hyperlinks may lend themselves to a more bright-line analysis, as characterized by Deschamps J. in Crookes, a more nuanced approach is necessary for reader comments which the National Post invites.

Burke J. goes on to say, at para 284:

Until awareness occurs, whether by internal review or specific complaints that are brought to the attention of the National Post or its columnists, the National Post can be considered to be in a passive instrumental role in the dissemination of the reader postings. It has taken no deliberate action amounting to approval or adoption of the contents of the reader posts. Once the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date.

Burke J. concludes, at paras 286 and 287:

Action must immediately be taken to fulfill the responsibility not to distribute defamatory material. The evidence establishes that was done within one to two days to address that problem. In my view, that is all the defendants could realistically do in the circumstances. While the plaintiff maintains more should have been done, I am unable to agree based on the evidence before me. As technology progresses, the answer and evidence on this issue may well be different. [287] Due to the prompt removal of the offending reader comments once known to the defendants, I have concluded the defendants are not publishers of the reader postings. Accordingly, I do not need to deal with the defence of innocent dissemination or fair comment.

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 Weaver v Corcoran 2015 BCSC 165
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