Robert Jacob Danay, “The Medium is Not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation”

Robert Jacob Danay (Department of Justice – Government of Canada) has published,”The Medium is Not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation”, McGill Law Journal, Vol. 56, No. 1, 2010 (subscription required). Here is the abstract:

In this paper the author critiques the approach to defamation over the Internet taken to date by the Canadian common law courts. In the emerging jurisprudence, the courts have relied upon untenably broad generalizations about Internet technology, repeatedly equating it with traditional broadcast media and expressing grave concerns about the corresponding threat to reputation posed by online defamation. This has led the courts to hold that when defamatory words are transmitted using the Internet, this will vitiate the availability of any qualified privilege that would otherwise have immunized the defendant from liability under traditional defamation principles, and substantially increase any resulting award of damages. The author argues that this approach results in a failure to strike the appropriate balance between free expression and the protection of reputation. The jurisprudence can also be seen as a product of a longstanding and unfortunate analytical tendency in defamation law – primarily apparent through the libel/slander distinction – whereby common law courts attach extremely divergent legal consequences to impugned statements based on indefensibly broad generalizations about the degree of danger to personal reputation posed by the medium in which the statement was communicated. Drawing inspiration from a comparison to defamation under the civil law of Quebec, the author proposes a new approach that eschews reliance upon unhelpful analogies and generalizations about particular media including the Internet, and involves the examination of impugned statements on a case-by-case basis, paying careful attention to the context in which these were actually made.

2 Responses to “Robert Jacob Danay, “The Medium is Not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation””

  1. Donald E. Waite Says:

    Dear Robert,
    Five years ago you defended a Dr. Bishop and you must be congratulated for perhaps being one of the most brilliant strategists in Canada. I know for I was on the wrong end of the stick. Do you ever concern yourself with the ethics of your position?
    Sincerely,
    Don Waite

  2. Antonin I. Pribetic Says:

    My name is not Robert. I am called Antonin. Your argument is invalid. Govern yourself accordingly.

    Seriously,is it not obvious to you that my post merely announces an article written by someone else? If you have an issue with the author, I politely suggest you take it up with him. Unless, of course, you are trying to use my blog to advance an agenda. In that case, please advise and I will delete your comment in accordance with my “No Rhetorical Hyperbole” policy.

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