Why American laws are hurting Canadians’ online reputations
Watch Above: Cyberbullying victim wins fight to delete naked photos from internet.
Nude photos of Salmi were posted on the gossip website, TheDirty.com. She had originally sent them to a boyfriend, who Salmi said posted them on the web once they broke up.
“I was mortified,” Salmi told Global News. Not only did the photos expose her, but comments underneath the photos from readers of the blog called her an escort, said she had HIV and called her a liar, she said.
But her fight to get the defamatory comments and the nude photos off the internet wasn’t easy, even as Canada casts its attention to issues of cyberbullying in the wake of Amanda Todd‘s tragic death.
The difficulty lies in the fact TheDirty.com is a website hosted in America, and the laws there protect freedom of speech to a much greater degree than it’s protected in Canada, explained Vancouver lawyer Andrew Aguilar, who practices in the area of Internet defamation.
Under the United States’ Communications Decency Act section 230, Internet Service Providers aren’t liable for content put up by a third party, so they can’t be sued, explained Aguilar. As long as they take down the content upon notification of a breach of copyright, they’re protected.
“It creates a really wide shield…a bunch of these sites rely on this,” he told Global News. If the websites were located in Canada, it would be a lot easier to get the images taken down. Here, a person’s reputation is given more protection than an individual’s right to free speech. Additionally, defamation laws in the two countries vary quite a bit, he said. In Canada, the test is whether the content would lower a person’s reputation in the community. Once that threshold is met, it is up to the other party to prove a valid defence, such as truth or responsible communication in the public interest. “In the states, that balance is flipped,” said Aguilar.
WATCH: Anisa Salmi’s battle against website TheDirty.com
Instead of relying on defamation, people wanting to get their images off websites based in the U.S. generally use copyright laws, he explained. Since Salmi’s images were self-taken, or “selfies”, she likely owned the copyright and could thus provide TheDirty.com with notice of a copyright violation. When the photographs are taken by another individual, it becomes even more difficult to use these laws to get the photos off the web. The victim would have to get the copyright assigned over to him or her from the photographer – and if it’s the person who initially posted the photos online, that legal remedy becomes almost useless.
Bill C-13, Protecting Canadians from Online Crime Act, is being tabled by the Conservatives. It would create a new offence of non-consensual distribution of intimate images and make it possible for authorities to prosecute people who distribute sexual images without consent. But Aguilar says there are still many questions about the proposed law and how it would play out in Canada.
Aguilar says these issues are only growing, especially with young and upcoming professionals. He says it is important not to blame the victims for what happened to their images, but he warns people, “to be careful with your images. Once they’re spread online, in digital format, on the Internet things can go viral instantly and it’s almost impossible to get things taken down.”
-With files from Amy Judd and The Canadian Press.
© 2014 Shaw Media