Defamation / Reputation
Afanasyev v. Zlotnikov
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The British Columbia Court of Appeal found that an online forum can be held liable for the tort of defamation if it fails or refuses to remove defamatory statements posted on the forum. The respondent ran an online forum on which an arguably defamatory remark concerning the appellant was posted. After two years, a defamation claim was filed, which was initially dismissed but later sent back to the trial court in order to determine if the post was considered a “republication” of statements when it was not removed after two years. The court reasoned that such statements can be considered “republished” by the forum if the forum fails or refuses to remove them, thus resetting the statute of limitations for tort claims concerning the original defamatory statement posted.
The respondent ran an online forum on which an arguably defamatory remark concerning the appellant was posted. The appellant noticed the remark in 2000 and urged the respondent to remove the remark. Two years later, after the statute of limitations had expired, the appellant noticed that the remark was still posted in the forum, then filed a defamation claim.
The trial court barred the claim on the ground that the original remark constituted a “single publication” and the remark was not “republished” by the respondent’s failing or refusing to remove the remark. The court dismissed the claim and held for the defendant-respondent. The appellant then appealed.
The appellate court disagreed with the trial court, finding that a single remark could be considered “republished” if a host forum neglected or refused to remove defamatory material. Accordingly, the appellate court remanded the case back to the trial court to determine whether the defendant-respondent’s actions could be considered a “republication” of the statements, and if so, to proceed to the issue of defamation.
The case is significant because the appellate court departed from Canada’s “single publication rule” which bars causes of action for republications of a single defamatory statement, and adopted an approach more similar to the defamation rules of the United States, which allow a separate cause of action for each subsequent publication.
The British Columbia Court of Appeal found that, “[i]f defamatory comments are available in cyberspace to harm the reputation of an individual, it seems appropriate that the individual ought to have a remedy.” 
The Court reasoned that “the offending comment remained available on the internet because the defendant respondent did not take effective steps to have the offensive material removed in a timely way. Although, for the reasons noted by the trial judge, legislatures may have to come to grips with publication issues thrown up by the new development of widespread internet publication, to date the issue has not been legislatively addressed.” 
Thus, the Court found that “it would be appropriate…to adopt the American rule over the rule that seems to be generally accepted throughout the Commonwealth; namely, that each publication of a libel gives a fresh cause of action.” 
 Para. 20 of the decision, http://www.canlii.org/en/bc/bcca/doc/2005/2005bcca398/2005bcca398.html.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The appellate court’s holding here protects individuals from potentially defamatory statements posted about them online. However, the holding nevertheless contracts expression by expanding the instances in which an online forum might be exposed to tort claims for statements posted by visitors to its site. This is likely to incentivize sites to disable unmonitored commenting, or to be “read only” sites, thus placing a chilling effect on the free, unmonitored exchange of ideas on online forums.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Canada is a common law country. The lower courts of British Columbia will be bound by the appellate court’s decision in this case, and this case will have persuasive authority on the appellate and trial courts of Canada’s other provinces.
Let us know if you notice errors or if the case analysis needs revision.