Canadian Underwriter

Broker Takes Stand

August 20, 2010  

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A story in the San Francisco Chronicle puts a sharp point on the cyber-slamming phenomenon, and how it could impact insurance carriers and policyholders:

A young lawyer looking for work discovered defamatory comments made by an anonymous poster on a website. The lawyer requested that the site’s operator remove the comments–but the operator refused, saying that by doing so, he’d diminish the site’s usefulness as an open forum.

The kicker: The site owner is an insurance broker.

You might think an insurance professional would be sensitive to issues around libel, but judging from the words of Gil Zvulony, a Toronto lawyer specializing in Internet legal issues, the issues aren’t cut and dried–especially if they have to do with Canadians.

In the U.S., courts can’t force site owners to remove defamatory material, he explains. “It’s almost like a telephone line, the argument goes. You wouldn’t hold Bell Canada responsible if somebody slandered somebody else over the telephone line.”

Here in Canada, “it’s up in the air. There haven’t been that many cases that have gone to court.”

Canadians spend most of their time on U.S.-based websites–Facebook, Twitter and Google all hail from south of the border.

“A Canadian court order to Google to remove the result isn’t going to help you,” Zvulony says–although he adds that there may be ways of getting at U.S. site operators through the court system. If a Canadian filed the lawsuit in this country instead of the U.S.–and the company hosting the defamatory comment happened to do business here–a Canadian court might be able to garnishee the firm’s revenues, should the suit succeed.

This is theoretical, Zvulony adds–he hasn’t tried it.

Most of the issues having to do with libel and the latest round of social media websites have yet to be tested in court, he notes. But that could change.

“Most of the time these are settled. I’m not aware of any that have gone to trial. But there will be. Everybody’s on Facebook these days.”

© Copyright 2010 Rogers Publishing Ltd. This article first appeared in the June 2010 edition of Canadian Insurance Top Broker magazine.

This story was originally published by Canadian Insurance Top Broker.