My weekly Law Bytes column (Toronto Star version, BBC international version, homepage version) places the spotlight on this week’s fundraiser in support of P2Pnet.net, a British Columbia-based website that is being sued for defamation for comments posted on the site by its readers.  The importance of the Internet intermediary liabilty issue extends well beyond just Internet service providers – corporate websites that allow for user feedback, education websites featuring chatrooms, or even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law.

The difficult question is not whether these sites and services have the right to voluntarily remove offending content if they so choose – no one doubts that they do – but rather whether sites can be compelled to remove allegedly unlawful or infringing content under threat of potential legal liability.  The answer is not as straightforward as one might expect since Canadian law varies depending on the type of content or the nature of the allegations.  The column reviews current law for allegations of unlawful or infringing content, noting that role of judicial oversight for illegal and infringing content in Canada is essential, since it strikes a balance between preserving free speech on the one hand and ensuring that harmful content can be taken offline in appropriate circumstances on the other.

However, as P2Pnet has learned to its chagrin, allegations of defamation are the exception to the rule.  Under current Canadian law, intermediaries can face potential liability for failing to remove allegedly defamatory content once they have received notification of such a claim, even without court oversight.

As a result, many ISPs and websites remove content in response to unproven claims, even if they privately doubt that the content is indeed defamatory.  From the company’s perspective, there is no legal risk to remove the content, yet there is potentially significant risk for failing to do so.

Given how easily content can be forced off the Internet with claims of defamation, the law creates a significant chill on free speech in Canada.  Intermediaries are understandably reluctant to ignore threats of litigation, yet without a legal safe harbour that protects them from liability, it is likely that the number of questionable defamation claims will continue to rise.

Addressing the free speech chill would require legislative change.  For example, the United States enacted a law ten years ago that provides broad immunity for intermediaries that host third-party content.  That provision has since been used dozens of times to immunize ISPs, large companies such as Amazon.com, and small websites who could ill-afford to fight legal challenges. 

A similar provision in Canada would protect sites such as P2Pnet, as well as the thousands of Canadian ISPs, websites, and bloggers, who are contributing to a robust online dialogue, but today find themselves vulnerable to lawsuits whose primary purpose may be to suppress legitimate speech.