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Cybertorts in Canada: Trends and Themes in Cyber-Libel and Other Online Torts

ANNUAL REVIEW OF CIVIL LITIGATION, The Honourable Mr. Justice Todd Archibald, Mr. Michael G. Cochrane, eds., Carswell, 2005

58 Pages Posted: 8 Mar 2006 Last revised: 21 May 2014

Elizabeth F. Judge

University of Ottawa - Common Law Section

Abstract

The article identifies trends and themes in cybertorts in Canada, examining especially how Canadian courts are approaching online defamation and internet jurisdiction issues. In cyberlibel cases, as communication technologies of online chat groups, websites and email are assimilated, some courts are re-considering traditional notions about communications, especially those that associate a message's influence with an author's identity, and concluding that internet communications may be believed more readily than communications in print; anonymous messages may be believed more readily than those by identified speakers; and communications in non-print media, with their correspondingly technologically enhanced features of hyperlinking, cross-referencing, archiving and searching, may be more powerful and memorable. Some of these views, however, are at odds with traditional assumptions about credibility, which historically has been correlated with the speaker's identifiability, bias, experience, and authority. The paper in particular questions the emerging view in internet defamation cases in Canada that anonymous online speech may be more likely to be believed than the same words published in print. While it is important to pay attention to the internet's particular features, including speed and interactivity, traditional theories about how credibility is evaluated and what criteria are weighed to assess belief should still be considered in this medium. Technology may widely expand who can be heard, but it does not necessarily follow that it should, or does, widely expand what and who is believed. The paper also considers internet jurisdiction theory in Canada and argues that Canadian courts should apply general internet principles under Canadian law rather than turning to "internet-specific" jurisdiction tests developed in other countries.

Keywords: cybertorts, torts, internet, defamation, invasion of privacy, internet jurisdiction

JEL Classification: K00, K13

Suggested Citation

Judge, Elizabeth F., Cybertorts in Canada: Trends and Themes in Cyber-Libel and Other Online Torts. ANNUAL REVIEW OF CIVIL LITIGATION, The Honourable Mr. Justice Todd Archibald, Mr. Michael G. Cochrane, eds., Carswell, 2005. Available at SSRN: https://ssrn.com/abstract=888522

Elizabeth F. Judge (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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