Cyberlibel: Information Warfare in the 21st Century?

Overview

Cyberlibel: Information Warfare in the 21st Century? by David A. Potts brings years of research and experience in libel and slander law into focus on how individuals and organizations can gain the upper hand in safeguarding – or restoring – their reputation once it’s assaulted on the Internet.

The book examines caselaw from all common law jurisdictions including Canada, the US, the UK, and Australia and provides practical strategies that can be used in defamation actions related to the Internet. 

 Cyberlibel: Information Warfare in the 21st Century? includes the following topics in Canadian and international defamation law:

  • What makes cyberlibel issues unique from a legal perspective
  • How to remove a defamatory publication from the Internet
  • Defences available for those sued for cyberlibel
  • Whether rules of conduct apply to bloggers and Facebook users
  • What constitutes invasion of privacy and injurious falsehood online
  • The liability of search engines and other third parties
  • Emerging case-law defining cyberlibel

This book represents a vital reputation-management tool for organizations of all kinds – from corporations and professional associations to government agencies and not-for-profits.

Reviews

“Cyberlibel is in a state of flux. I found Mr. Potts’ interpretation of disclosure of the identities of anonymous parties during the course of libel proceedings invaluable because it covered every aspect of it and provided access to innumerable sites of which I was completely unaware. I think in order to follow cyberlibel you have to think laterally and Mr. Potts’ text offers shrewd comments and provides necessary cautions to litigators who wish to plunge into the internet with Statements of Claim blazing.”

Julian Porter, Q.C.

“David Potts has produced an authoritative and insightful study of cyberlibel which needs to be on the bookshelf of every media lawyer and author. His analysis of this emerging area of global law is first class.”

Bruce Sanford, Baker & Hostetler LLP, Washington DC, Author of Libel and Privacy, 2d ed. (New York: Aspen Publishers, 2010)

“The internet is a soapbox like no other we’ve known before. Defamation actions were always difficult at best and now cyberlibel has muddied the waters even further. This book is the perfect tool to help clear those waters.”

Gavin May, Legal Counsel, OPP Association

“This book will surely be required reading for those who become involved in def­amation proceedings involving statements disseminated over the Internet. There can be little doubt that the Internet has become one of the most powerful means of disseminating information ever invented, and that when misused the Internet can become an instrument of oppression. Regrettably, cyberlibel has become increas­ingly prevalent and pernicious. Through years of study and analysis, David Potts has assembled a wealth of valuable information concerning the manner in which cyberlibel has been dealt with by courts and legislatures in different jurisdictions, including Canada. I predict that this book will be relied upon quite heavily in the years to come by those who seek guidance in this rapidly evolving area, including litigators, litigants and the courts.”

Kent Thomson, Davies Ward Phillips & Vineberg

"Potts has written a practical how-to (and why-to) book on an omnipresent yet gen­erally unexplored subject. His book is more than just a text on the subject. He has identified the touchstones of the topic and has de-mystified them in a readable yet comprehensive manner. The useful Q & A chapter provides straightforward explor­ation of common events, actions and alternatives while directing the reader to more detailed and cited sections of the book for support and substantiation. A must have for all those who publish (or who are published about ) on the Internet as well as their counsel.”

Tony Sutcliffe, Sr. Vice President, General Counsel, Ricoh Canada Inc.

“David Potts has created a thorough and practical work, aimed squarely at assisting Canadian lawyers and judges to navigate the developing area of cyberlibel. The au­thor uses an array of tools, including descriptions of the general applicable legal principles, existing case-law, surveys of the Internet technology central to the na­ture of cyberlibel and a strong analysis and breakdown of the relevant substantive and procedural issues, to carefully demonstrate the link between traditional libel law and emerging online issues that will be unfamiliar to many legal professionals. Mr. Potts’ division of the text into distinct chapters addressing different aspects of the topic, as well as the inclusion of case-law and materials from relevant foreign jurisdictions, makes this book a solid, succinct reference tool that will be indispens­able to lawyers and judges dealing with cyberlibel issues.”

Mark S. Hayes, Hayes | eLaw LLP

“David Potts, who has made a significant contribution over time to the inventory of scholarly materials relating to the law of defamation, has devoted his most recent publication to the highly contemporary subject of cyberlibel. His book deals with this important subject in all its aspects, including the sub­stantive law of defamation as developed in traditional common law jurisdictions, in actions for defamation relating in particular to intermediaries and users of the Internet. The text is comprehensive, covering causes of action, remedies, defences, damages, jurisdictional issues and the unique problems associated with cyberlibel examined in the light of traditional principles in the law of defamation. Furthermore, the text, which is developed in a pragmatic format, is organized with a view to providing an effective research tool and an instrument for problem-solving. As such, it provides an extremely thorough and useful inventory of contem­porary jurisprudence and related legal analysis devoted to this rapidly developing area of the law.”

David Scott, Borden, Ladner, Gervais, Ottawa

“This new book by David Potts will be helpful to a broad cross-section of the bench and bar. Mr. Potts provides helpful information as to the characteristics of the Inter­net and web protocol and procedures. He explains how cyberlibel differs from libel claims involving off-line media. Mr. Potts then frames his discussion of the legal issues by relating how the unique aspects of cyberlibel present different issues and demand different solutions. Mr. Potts draws on leading cases and authorities from the United States, Eng­land, Australia and elsewhere in addressing important and challenging issues such as jurisdiction, damages, the availability of injunction relief and the enforcement of judgments. This is a great asset for the many readers who would not otherwise have ready access to these materials. The format is user friendly. Charts are provided which, for example, allow for efficient review of case law concerning general, aggra­vated and punitive damages. The book also features a helpful section of Frequently Asked Questions. This book will be extremely helpful to counsel considering whether and where to litigate and in providing realistic advice to their clients as to damages. This book will also provide excellent guidance to government and corporate counsel facing the challenge of advising clients who are posting content on the web how to limit exposure and manage risk in an interconnected and interactive world.”

The Honourable Mr. Justice John Sproat Ontario Superior Court of Justice, Brampton

“David Potts has produced a superb guide to the complex matrix of legal issues sur­rounding cyberlibel in the global information age, artfully navigating the myriad issues of procedure and substance, practical judgments, legal doctrines, and theor­etical policy issues with which lawyers and jurists world-wide must contend in meet­ing the challenges posed by libel litigation arising from Internet communication.”

Rodney A. Smolla, President, Furman University, South Carolina, Author of The Law of Defamation, 2d ed.

“In this compelling and highly readable book, David Potts vividly describes the ways in which defamation disputes involving the new media differ from those involving the old. Full of practical and tech-savvy advice, it will quickly earn a place on the bookshelves of practitioners, Internet publishers and those whose reputations are attacked online.”

Dr. Matthew Collins, Barrister, Melbourne, Australia Author of The Law of Defamation and The Internet, 3d ed.

“In a world where the medium is the message, new media constantly creates innova­tive threats and forms of cyberlibel attack. Potts has provided us with a complete and essential work that definitively guides us through the dangerous nuances of the vital defences that are available to us.”

Duncan Cornell Card, B.A., LL.B., LL.M. Partner and Co-Chair, Technology Practice, Bennett Jones LLP

“This book will be extremely useful to legal practitioners. It is well indexed and, be­cause of the way it is set out and extensively quotes from relevant judgments, pro­vides a search resource of considerable value. The reader obtains a real insight into relevant defamation law and also to how judges have applied it in the developing area of cyberlibel.”

Alasdair Pepper, Partner, Carter-Ruck Solicitors, UK

Table of Contents

Foreword
Acknowledgments

Part I: Introduction
Chapter 1: Summary of My Personal Observations about Cyberlibel
Chapter 2: How to Use this Book
Chapter 3: Frequently Asked Questions
Chapter 4: Summary of the Law of Defamation and its Application to Cyberlibel
Chapter 5: Characteristics of the Internet
Chapter 6: Differences and Consequences in Cyberlibel Litigation and Offline Libel Litigation
Chapter 7: Should Internet-specific Principles of Law Be Adopted?

Part II: Preliminary Questions
Chapter 8: Notice and Limitation Periods
Chapter 9: Jurisdiction
Chapter 10: Disclosure of the Identity of an Anonymous Author
Chapter 11: Internet Libel Actions Stayed as an Abuse of Process in the UK

Part III: Remedies
Chapter 12: Damages in Cyberlibel
Chapter 13: Injunctions in Cyberlibel
Chapter 14: Take Down Notices

Part IV: Cause of Action and Defences
Chapter 15: Publication and Hyperlinks
Chapter 16: Forms of Defamatory Meaning
Chapter 17: Reference to the Plaintiff

Part V: Defences
Chapter 18: Defence of Innocent Dissemination at Common Law
Chapter 19: The Defence of Qualified Privilege
Chapter 20: Defence of Responsible Communication on Matters of Public Interest

Part VI: Internet-Specific Subjects
Chapter 21: Internet Intermediaries
Chapter 22: Search Engines
Chapter 23: User-Generated Content — Web 2.0 and Online Social Networks

Part VII: Privacy
Chapter 24: Invasion of Privacy/Misuse of Private Information

Part VIII: Reference Material
Cyberlibel Damage Awards Granted
Cyberlibel Injunctions
Cyberlibel Jurisdictional Motions
Judicial Glossary of Selected Internet Terms
Annotated Bibliography on Information Warfare

Table of Cases
Index

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