Defamation, harassment, copyright breach and hacking are the four horsemen of the online Internet apocalypse. There's no need to feel like a powerless victim if you’re experiencing any of those four situations, or have been unjustly accused of being involved in them. There are strong legal remedies available of both a civil and criminal nature for all of them.

The firm has an extensive background in Internet governance, security, and proactive online remedies. The firm's online Internet defamation, harassment, copyright and hacking practice extends for Canadian clients throughout the world, and for foreign clients throughout Canada. We collaborate with foreign legal counsel when a multi-jurisdictional approach is necessary, though we may be able to achieve significant results solely within Canada. 

WHAT YOU CAN LEGALLY DO ABOUT ONLINE DEFAMATION

Defamation in essence is communicating a false statement likely to harm the reputation of someone else. The communication can be to one or many people, it just needs to be to someone other than the person being harmed. No proof of intent of defamation is needed, nor is proof of actual malice. The Internet has unfortunately now made the tort of defamation so easy to perpetuate, and greatly aggravates it by enabling the defamation to hang around forever though keyword searches. So what can you do? 

  1. Secure the Defamation Evidence - Regardless of whether you’re the victim of online defamation, or the victim of unjust accusations of defamation, the ephemeral nature of the Internet means you’ve got to act quickly to lock down the evidence of exactly what people did or did not say before it disappears. Take screenshots of everything you can. Printout paper copies of the evidence. Carefully record the dates of your discoveries. Track down all sites where the material may be cross-posted. Try to access groups where offending material is posted. Record web addresses. Record the businesses hosting the offending material. Track down as many contact details as possible for the offending poster, and for the services hosting the material. Ask your friends to look as well, as different geographic locations, group memberships, friendships or followers may lead to discovery of different materials. Check what search engine indexing of the material exists. Try to cover as many social media platforms as possible, connecting as many accounts to the same poster (who may go by different account names). Expect this to all be a lot of work. 

  2. Assess Potential Defences to Online Defamation - Whether you’re a potential plaintiff or defendant, defences of justification (that it is true), fair comment, responsible communication, and innocent dissemination are all possible. Merely posting hyperlinks on a website which leads to another site with defamatory content was found by the Supreme Court of Canada to not amount to defamation, so long as the links are used more like footnote sources. But reposting or repeating the content could be a defamatory act. 

    If you’re a potential defendant, securing the evidence is intertwined with assessing defences, where you want evidence of the complete picture of the conversations you were part of. Was this a popular public story? Were you merely responding to something the plaintiff posted? Were you responding to a news story? All this might require tracking down thousands of pages of material.

  3. The Cease and Desist Lawyer Letter - Lawyers can be very reasonably priced for results achieved if matters can be kept out of court. A lawyer letter, if carefully crafted, requesting the right things, in the right way, sent to the right destinations so that the right people read it, can sometimes accomplish a surprising amount. Post takedowns. Post retractions. We're often shocked by the results we get when we send a letter. We've had complete website take downs, and web hosting services take down user content that users refuse to takedown or where the user can’t be identified or contacted.

    The best part of the lawyer letter angle may be that they can be sent anywhere in the world. If you're a Canadian, and need something taken down in California, you don't need a California lawyer to write a letter. Whereas you’d need a California lawyer to go to court in California. These letters can also work against Canadian subsidiaries of foreign Internet online corporations. Don't let them pull the old, "oh, your data is isn't in Canada, so you'll need to come after us in California” (or wherever their headquarters is). Also don't let them pull the, "oh, you agreed to our 100 pages of fine print terms of service, that you never read, and no one else reads either, and that we change every month, but by clicking you’re now stuck with our terms including submitting disputes to binding arbitration in some obscure corner of the globe.” A court could strike down such terms as unfair.

  4. Seek Small Claims Court Damages - While in some Canadian jurisdictions Small Claims courts can’t deal with defamation, at least in Ontario defamation suits are accepted as small claims, with the damages limit for the Court recently raised to $35,000. You might be thinking: “but wait, I’ve suffered way more damages than that!” However, if you review Canadian damages quantums for defamation, you’ll mostly find numbers below $50,000 as Canadian courts rarely award punitive damages. True, sometimes damages may be way above that level, but court litigation costs outside of Small Claims will be many times greater, so you need to carefully assess the likelihood you’ll win more, compared to those increased costs.

  5. Seek Superior Court Injunctive Relief - The main perk of proceeding in Superior Court as compared to Small Claims court isn’t the increased damages that are possible, but rather that as a court of “original inherent jurisdiction” (as opposed to the very limited statutory jurisdiction of Small Claims Court) a Superior Court can effectively grant you any relief it believes to be just, including injunctive relief requiring an online poster or service provider take down offending content. It can even order a search engine to stop indexing the content. If a Superior Court order is ignored, it can constitute a contempt of court, with jail as the ultimate sanction.

  6. Make a Complaint to the Police

    “Criminal libel” is actually an offence at ss. 297 to 317 of the Criminal Code. But prosecutions are rare, and parts of those sections have been struck down as unconstitutional in some provinces. The better ground for police complaint is criminal harassment if the facts can make it out.

WHAT YOU CAN LEGALLY DO ABOUT ONLINE HARASSMENT

Online harassment may also constitute defamation, but harassment has a different legal connotation in that the conduct could more commonly rise to the level of a criminal offence, presenting both private and public remedies. While the distinction between online annoyances and online harassment in the legal sense is a bit difficult to pin down, reference to the relevant portions of the Criminal Code’s definition of harassment may be helpful:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of … (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

Thus online stalking through repeated communication, even if not overtly threatening, could itself constitute online harassment. So what can you do?

  1. Make a Complaint to the Police - While starting off with a police complaint may seem heavy handed, there is no financial cost to making such a complaint. The complaint can’t be frivolous, and definitely can’t contain false information - even if the untruthfulness is accidental - as you could yourself risk being charged with making a false report. So you need to be very certain of your information. But the police will resultantly often reach out to the person being complained about to issue a warning, which might be more effective than civil court action given people’s fear of being charged with an offence.

    If the harassment is serious enough to constitute an offence, the police will be in the best position to seek out a search warrant to attempt to learn the identity of a poster, whereas obtaining such information through private legal means can be very time consuming and costly.

  2. Write a Demand Letter to the Poster or Service Provider - Because harassment is more nuanced than other acts - communication or posting online is usually perfectly legal - almost always must the harasser be warned that another person is feeling harassed, and that the behaviour needs to immediately stop, prior to stronger measures being justified (like charges). The more warnings, the better. Likewise, service providers may need to be notified more than once about action by a harasser in order to take action, and those notices will better support stronger legal action later against them. So a warning letter coming before a police complaint could be appropriate.

  3. Seek a s. 810 Criminal Code Peace Bond - Even if the police won’t act on a criminal complaint, it’s possible to seek a private peace bond from a Canadian court against another person. It requires you show reasonable grounds to fear the other person will cause person injury to you, your spouse or children or damage to your property. Having a lawyer to assist in either pursuing or defending against a peace bond can be very helpful. The result of a peace bond hearing can be a no contact order for up to a year, with criminal consequences if the order is breached.

  4. Seek Civil Court Remedies - You could sue a harasser for damages in either Small Claims or Superior Court, and additionally seek other relief in Superior Court like an injunction to stop the behaviour, or even an Anton Piller order as a civil search warrant against an Internet service provider to obtain identity information on a harasser.

WHAT YOU CAN LEGALLY DO ABOUT ONLINE COPYRIGHT INFRINGEMENT

You don’t need to “register” a work in order to be protected by copyright. Regardless of whether it’s writing, audio, video, or some other kind of creation, if you’re the creator or own the rights to the work, you have remedies to protect yourself against others from appropriating that work. The remedies and steps for online copyright infringement, in order of escalation, are very similar to the remedies for defamation, starting with (1) securing evidence, (2) sending lawyer letters, (3) going to court, and even (4) going to the police. For court, it’s usually the Federal Court in Canada which has jurisdiction over copyright. And unlike the rare offence of criminal libel, the police do take Copyright Act offences more seriously; charges could result from a complaint, likely depending on how large scale the infringing activity is.

In short, you don’t need to put up with your intellectual property being stolen and resold online. While the thief might ignore your pleas, pursuing the online platforms through which your works are being redistributed might be most effective in choking off the perpetuation of the copyright infringement.

WHAT YOU CAN LEGALLY DO ABOUT HACKING

While "hacking" can mean different things to different people - not all of them bad - it's come to mainly take on negative computer security connotations that refer to any compromising of information communication technology data, sometimes without actually breaking security locks but rather through phishing for password data by fraudulent text, emails or webpages. Lawyers can be just as necessary as computer security experts in responding to online data hacks. In significant hacking situations, you likely need both an online security expert and a lawyer. You shouldn’t presume that all hacks originate from foreign jurisdictions where you have no legal remedies. Some could originate right in one of the cubicles housing your employees. It’s important to take a combined computer security investigation and legal remedy response to any hack.

The results of your internal data security investigations will drive the legal remedies available to you:

  1. It was an inside job - where a current or former employee was involved, you’ll have many legal remedies available as s/he will likely still be within a local court’s jurisdiction;

  2. It was Perpetrated Within Canada - even where hacking doesn’t solely originate inside Canada, the beneficiaries of hacked data or co-conspirators could be inside Canada, and thus court remedies could be available;

  3. It was Perpetrated By an Individual Outside Canada - if you can narrow down who did it, your Canadian lawyer could work with foreign counsel in taking civil action against an individual and possibly making a criminal complaint in a foreign jurisdiction, depending on where it might be;

  4. It was Perpetuated by a State Actor or Criminal Organization or Individual Outside Canada Who Cannot Be Identified - although mysterious forces hacks are common enough, making a criminal complaint to Canadian authorities may still be worthwhile, providing as much identifying information as possible, as the hack might be part of a larger scheme targeting data elsewhere in Canada, or Canadian authorities might already be looking at those who pulled off the hack; although you shouldn’t get your hopes up, you also shouldn’t assume government will do nothing. Production orders, search warrants, mutual legal assistance requests, and even extradition might be possible if you present a compelling enough case to the government.

The Online Internet Defamation, Harassment, Copyright & Hacking Lawyers

The firm's Managing Lawyer and Senior Barrister Gordon S. Campbell’s background makes him especially well placed to legally assist clients with online Internet defamation, harassment, copyright and hacking issues. He served as Canada's Director of E-Business Development with Industry Canada, a delegate for Canada to United Nations and Asia Pacific Economic Cooperation (APEC) forum meetings on Internet governance, and dealt with the Organization for Economic Cooperation and Development (OECD), World Trade Organization (WTO), G8/G20 and other states on a bilateral basis concerning Internet law and policy issues.

He also served as a Federal Crown Prosecutor with the Department of Justice Canada where he was Copyright Prosecutions Coordinator for the Ontario Regional Office and Radiocommunications Prosecutions Coordinator for the Atlantic Regional Office, a consultant to the Canadian Radio Telecommunications Commission (CRTC) on the enforcement of Canadian anti-spam online communications regulations, legal counsel to the Royal Canadian Mounted Police (RCMP), and liased with the Canadian Security and Intelligence Service (CSIS) and Communications Security Establishment (CSCE) in the course of his work.

He now helps private individual and organization clients take proactive legal steps to firmly and effectively deal with online defamation, harassment, copyright and hacking challenges. He is assisted in this work by Barrister William Stephenson and Senior Solicitor Matthew MacLean, as well as a team of law clerks.