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CCCA_V2No4_Col-CorpLaw-FIN.qxd:CCCA_V1No2_Col-CorpLaw-V1.qxd 11/24/08 3:28 PM Page 45 Legal Update – Osler Hoskin & Harcourt LLP You can’t say that Take a proactive approach to potential Internet-based libel. he growth of the Internet over the past easy access (e.g., on corporate bulletin answered, counsel must consult with senior Tten years has raised new and challeng- boards, intranet sites, etc.). management to assess an appropriate ing issues for the business world, including Employees should be educated on the response.Strategic corporate considerations the ease with which defamatory state- general principles and protocol for elec- might outweigh narrower legal issues. ments can be made. tronic communications, procedures should For example,the company should consid- Email,websites,bulletin boards,blogs and be established to alert a designated person er the difficulty, time and cost involved in chat rooms have given unprecedented to potential problems, and a team should identifying the author of a statement on the power to individuals to damage a reputation be in place to provide guidance and mobi- Internet,whether the ensuing damage is suf- instantly and in relative anonymity.Whereas lize to address issues promptly when they ficient to warrant getting a statement the circulation of print newspapers or tele- arise. Clearly detailing the disciplinary removed,and whether legal action is the best vision broadcasts has been relatively limited, action that may result from misuse of email route to a remedy in the circumstances. defamatory statements in cyberspace may and the Internet both serves as an educa- A lawsuit can be complex, costly and reach a global audience. These statements tional tool and may provide support for a lengthy, and in the end, it might generate can be copied, linked and repeated endless- decision to dismiss an employee for more negative publicity than the original ly, and accessed anywhere someone can log improper Internet usage. statement. In some cases, a carefully worded, onto the Internet. credible and constructive letter can achieve Vigilance needed the same result with less cost and publicity. Proactive approach The ease with which defamatory statements When a company’s own employee has Given the proliferation and conceivably can be made on the Internet increases the made a potentially libellous statement over damaging repercussions of these types of likelihood that such statements will occur.As the Internet, in addition to the legal and communications, corporate counsel would such, corporate counsel should also be vigi- strategic corporate issues addressed above, be well advised to adopt a proactive lant about potentially libellous statements counsel should take any ensuing complaint approach to potentially libellous Internet- being made about specific corporate players seriously and generate a swift response. An based statements that originate either from or the corporation itself. apology and retraction should be consid- within or outside of the company. Vigilance, in these circumstances, boils ered, and the statement should likely be Employees without proper training down to awareness and a prompt response. removed. Usual disciplinary procedures might expose their company (and them- Communications spread quickly on the should be invoked.In anticipation of poten- selves) to legal liability and damages Internet, and steps (legal or otherwise) may tial litigation, proper filing and storage of all through reckless email and web or discus- need to be taken promptly to address a relevant data should be undertaken. sion group postings that they consider to potentially defamatory statement. Electronic communications are prolifer- be informal, have not subjected to editori- Initially,the issue is a legal one:is a state- ating and may do untold harm, whatever al and/or legal checks, and mistakenly ment in fact defamatory, or alternatively, is (and wherever) remedies might be available believe do not constitute publication. it true, fair comment or protected by a after the fact. For general counsel, vigilance A proactive approach means addressing legal privilege? Several other inquiries are and proactivity can avoid damage from the proper use of electronic communica- also necessary: what are the notice and within and minimize harm from outside of tion in corporate policies, codes of con- limitation periods under the relevant legis- the corporation.A sound assessment of the duct, and even confidentiality agreements lation? Does the notice period for other legal issues, firmly grounded in a broad with former employees who are disgrun- media apply to Internet communications? organizational perspective, is essential. tled. Every employee should be given a What is the window of opportunity for copy of applicable policies, codes and launching a lawsuit? What other remedies Sonia Bjorkquist and Randall Stephenson agreements when they are hired and again, may be appropriate and available to address are members of the Litigation Department of intermittently, throughout their employ- or respond to a perceived harm? Osler Hoskin & Harcourt LLP’s Toronto office ment. Policies should also be posted for Once these legal questions have been who specialize in defamation issues. HIVER 2008 CCCA Canadian Corporate Counsel Association 45