Negative business reviews

[Jo]

Why we do not allow business reviews on this board:

Sites dedicated to business reviews, ie tripadvisor.ca, are able to do so because they have the staff to screen each post for libelous statements before allowing it on the board. We are not in a position to do this.

Aside from libel issues, businesses can be (and often are) adversely affected by malicious and unfounded comments made by competitors under the guise of a review.

Remember: A thread offering positive reviews about good businesses in any one category (say restaurants) is an excellent and libel-free way to provide a sort of unspoken negative business reviews about the businesses that not mentioned. Negative review by omission, you might say.

[Nebula]

Good time to remind people that the publisher (in this case Castanet) of a libelous statement can be found just as guilty of libel as the person who wrote the statement.

[gardengirl]

Good time to remind people that the publisher (in this case Castanet) of a libelous statement can be found just as guilty of libel as the person who wrote the statement.

Not sure if that is the case any longer. I believe it was overturned by the Supreme Court.
For example: If you post a link to something which is libelous, you cannot be charged.

[Nebula]

No, garden. You are right that a website can no longer be held liable for posting a link to another, libelous site. However, what I said previously stands.

[gardengirl]

Ah. Thanks for the clarification.

[French Castanut]

What's about my burger thread? Is it okay?

[Logitack]

assume so, as long as no negative comments.

[Jo]

Sure, positive reviews are great. And remember, if you have a thread full of good reviews about various businesses - say in this case, burger joints - then the ones not mentioned are, in a way, being given a negative business review by omission, which is entirely acceptable.

[36Drew]

Good time to remind people that the publisher (in this case Castanet) of a libelous statement can be found just as guilty of libel as the person who wrote the statement.

Do you have any BCSC or SCoC rulings in mind to re-affirm that statement?

[Nebula]

Good time to remind people that the publisher (in this case Castanet) of a libelous statement can be found just as guilty of libel as the person who wrote the statement.

Do you have any BCSC or SCoC rulings in mind to re-affirm that statement?

There is much written about this that can be found on the web. Here's one quote from the Centre for Constitutional Studies:

A defamatory statement must be published for it to be actionable. When published in a newspaper, or other media outlet, it is assumed a third party read, saw, or heard the publication. Libel (written defamation) covers all words or images that have been reduced to a permanent form and “applies to everything that a newspaper or broadcaster publishes.”[29] Editorial columns, letters to the editor, cartoons, and classified advertisements can all be found defamatory.[30] Furthermore, the way a newspaper is laid out can also be defamatory, for instance, if a photograph of a person is accompanied by the wrong title or is placed as though it accompanies an unflattering story.[31]

Another important point about publication is that “regardless of a source of a piece of information or an opinion, whoever publishes it is responsible for it. A radio station is responsible for everything that is aired by that station. A newspaper is responsible for everything that appears in its pages.”[32] If a news source writes a defamatory story or a defamatory letter is written to the editor, “any newspaper that publishes the defamatory statements is responsible for it.”[33] A plaintiff (person who has potentially been defamed) often has choices of whom to sue. If a defamatory story was published in a newspaper, the plaintiff may choose to sue the news service, the author of the letter, the newspaper itself, or a combination of the three. Regardless of who else is sued, if the newspaper published the defamatory material they can also be found liable. “The simple point is that anyone who publishes libelous material is legally responsible for it.

[36Drew]

Good time to remind people that the publisher (in this case Castanet) of a libelous statement can be found just as guilty of libel as the person who wrote the statement.

Do you have any BCSC or SCoC rulings in mind to re-affirm that statement?

There is much written about this that can be found on the web. Here's one quote from the Centre for Constitutional Studies:

A defamatory statement must be published for it to be actionable. When published in a newspaper, or other media outlet, it is assumed a third party read, saw, or heard the publication. Libel (written defamation) covers all words or images that have been reduced to a permanent form and “applies to everything that a newspaper or broadcaster publishes.”[29] Editorial columns, letters to the editor, cartoons, and classified advertisements can all be found defamatory.[30] Furthermore, the way a newspaper is laid out can also be defamatory, for instance, if a photograph of a person is accompanied by the wrong title or is placed as though it accompanies an unflattering story.[31]

Another important point about publication is that “regardless of a source of a piece of information or an opinion, whoever publishes it is responsible for it. A radio station is responsible for everything that is aired by that station. A newspaper is responsible for everything that appears in its pages.”[32] If a news source writes a defamatory story or a defamatory letter is written to the editor, “any newspaper that publishes the defamatory statements is responsible for it.”[33] A plaintiff (person who has potentially been defamed) often has choices of whom to sue. If a defamatory story was published in a newspaper, the plaintiff may choose to sue the news service, the author of the letter, the newspaper itself, or a combination of the three. Regardless of who else is sued, if the newspaper published the defamatory material they can also be found liable. “The simple point is that anyone who publishes libelous material is legally responsible for it.

The reason I ask is that while there is no legislation addressing liability for service providers, and there's but a fraction of a handful of cases addressing this specific issue (liability of libel in public forums) - the one that has been referenced most (for some definition of "most") in fact goes expressly grants immunity to those that play "subordinate roles" in dissemination of information (in this case, public forums).

http://www.courts.gov.bc.ca/jdb-txt/sc/04/01/2004bcsc0137.htm

paragraph 62:

[62] The essence of that view was adopted by Fedah, J. in Slack v. Ad-Rite Associates Ltd.,[1998] O.J. No.5446 (Q.L.) (Ont.Gen.Div.), at para.17:

In general, every person who takes part in the publication of defamatory material bears responsibility for its publication, including writers, editors, printers and distributors. However, a person who acts merely as a distributor may be able to rely on the defence of innocent dissemination. In the Law of Defamation in Canada Toronto: Carswell, 1987) at pages 283-4, Brown explains the defence:

Persons who play a “subordinate role” in the dissemination of defamatory material, such as vendors of books, magazines, and newspapers, or carriers, librarians and other distributors are not liable for its publication where they are totally ignorant of the defamatory contents of the material, and have no reason to suspect it is libellous. .

The rationale underlying this defence is that distributors have no opportunity to read all the material that passes through their hands: see Goldsmith v. Sperrings Ltd., [1977] 1 W.L.R. 478 (C.A.). Likewise, liability does not affect person in the chain of distribution who do only mechanical or menial acts: see Lobay v. Workers and Farmers Publishing Association Ltd., [1939] 2 D.L.R. 272 (Man.Q.B.).

Common interpretation: If a forum operator exerts editorial control (reviews and edits posts), then they are no longer subordinate. If they do not exert editorial control, but rather remove posts in reaction to a complaint, they are simply acting in a subordinate role and not liable for said posts.

http://www.courts.gov.bc.ca/jdb-txt/ca/05/03/2005bcca0398.htm

Reverses a decision with regards to time limitations in the previous decision. If you're going to remove a libelous comment, be sure to remove them all and don't allow it to continue.

The reason why I asked for specific court cases is because I already knew of these two (which, really, are so far the only ones). "Common Carrier" has, however, been a valid argument in most cases (usually in relation to network access and website hosting). While Castanet should certainly take notice of any complaints of libel and act accordingly, they may in fact be doing themselves a disservice by actively exerting editorial control over posts. Should something be missed, and somebody in fact decides to have a spat and take them to task over it - they may not be able to withstand the definition of "subordinate role".

Just an observation from somebody incredibly interested in technology and law.

[Nebula]

That's not the way I read the passage you quoted.

A 'distributor' of material may be found not guilty of libel. It doesn't say anything about the 'publisher' of material.

In the case of these forums, the poster is the author, Castanet is the publisher. I suppose the company that Castanet contracts to hold its information on a server somewhere and allow it to be accessible to the surfing public is the distributor.

I have been through this numerous times. It is why newspapers will not publish what they consider to be libelous letters to the editor.

[36Drew]

That's not the way I read the passage you quoted.

Which is why I posted links to the decisions. There's more than one paragraph. In fact, there's 114 in the first decision. The defendant was the federation (forum operator) and was found to not be a publisher because it wasn't exercising editorial control over the forum posts but rather exercised reasonable efforts to remove the libelous statements once they were pointed out. The person making the post was found to be the publisher and therefore liable. The Federation was found to simply be a distributor (that magic "subordinate role").

In the case of these forums, the poster is the author, Castanet is the publisher.

And I had already alluded to the fact that Castanet would probably be considered a publisher as they do in fact exert editorial control over posts.

I have been through this numerous times.

I'll bet dollars to donuts that I've been at the receiving end of various copyright, libel, abuse complaints (in the capacity as a "distributor" and "common carrier") than you...

[Nebula]

I see where you're coming from now.

For the record, I have never been so much as accused of libel. But I have had to explain (ad nauseum sometimes) why publishers stay away from potentially libelous statements.

[36Drew]

I see where you're coming from now.

For the record, I have never been so much as accused of libel. But I have had to explain (ad nauseum sometimes) why publishers stay away from potentially libelous statements.

I've never been accused of libel in the sense that I wrote said libelous words, but rather that I either operated (or helped operate) a forum that may have had defamatory statements published onto it by one or more contributors. I've also had varying degrees of libel complaints made by third parties (usually an individual - sometimes via legal representation, but not often) for a website or forum that would have been hosted on a network under control of the service provider company that I work for (and I've worked for a few in said role).