Website developer ensnared in Novus-Shaw court battle

Every week Techvibes will be republishing an article from Business in Vancouver newspaper.

This article was originally published in issue #1038 – September 15-21, 2009.

Vancouver-based web-design firm 6S Marketing Inc. has been a named a defendant in a lawsuit that could potentially set a precedent in addressing how far liability extends for defamatory content that is posted online.

Calgary-based Shaw Communications Inc. (NYSE:SJR) filed an August 21 B.C. Supreme Court lawsuit alleging that Novus Entertainment Inc. and 6S defamed Shaw on a website that was created by the two defendants last July.

6S was allegedly hired by Novus, which provides Internet and TV service in Vancouver highrises, to develop its website.

On the site, Novus calls on Shaw clientele to demand that Shaw offer the same $10 deal to all of its customers.

Shaw’s suit follows court action filed in July by Novus that alleges Shaw has launched a predatory pricing campaign – in which it offers Internet or television service for $10 a month – to squeeze Novus out of the Lower Mainland market.

While Novus and Shaw have a long-standing dispute, the involvement of 6S is a new twist.

If 6S is found guilty of defaming Shaw, the verdict will be food for thought for other Internet marketing and web-development firms when they create online content for clients.

Shaw also alleges that the negative public comments about Shaw that were posted on and on Twitter and Facebook pages were not posted by the general public as implied, but were falsely posted by Novus and 6S.

David Sutherland, a media lawyer with David F. Sutherland & Associates, said claiming that “I was just following orders” isn’t a sufficient defence for any content creator that’s accused of defamation, be it online or in print.

“If you know what the content is and participate in any way in its [creation] and/or publication, you don’t have that defence,” said Sutherland.

He added that the United States has made more progress than Canada in defining who should be held liable for online content.

Generally, a website host or Internet service provider can’t be prosecuted in the U.S. until it has at least been warned, via a notice and takedown procedure, that it’s hosting defamatory content.

The efficacy and the interpretation of the United States law is still disputed, but Sutherland noted that courts in Canada are following the United States’ lead.

“Normally, a host won’t be dinged until some reasonable period of time after notification,” he said.

He added that the Canadian courts recognize that somebody needs to be held liable for online content, even if the public posts it anonymously in a site’s comment section.

6S declined to comment on the case. Shaw did not return calls by press time.

It’s not clear whether Shaw notified 6S about the alleged defamatory material prior to filing the suit.

Shaw is seeking damages and an injunction restraining Novus and 6S from publishing the allegedly defamatory words.

Shawn Neumann, president of Domain7 Solutions Inc., another Vancouver-based Internet marketing and design firm, said Domain 7 has some responsibility in ensuring it’s not assisting in illegal activity undertaken by companies it creates content for.

He noted that if there are any issues with the content a client wants created, Domain 7 will clarify, usually in an indemnification, that the client takes full responsibility for ensuring that its practices and approach are legal and ethical.

“However, that’s an agreement between the two parties and not involving anyone that may determine themselves to be adversely affected,” Neumann said.

“They can choose to sue whomever they please, but the indemnification can help transfer the risk back to the client so that the web company is not responsible for any costs associated with the case.”

There are other lawsuits in B.C. courts that are addressing the question of liability for online content.

Wayne Crookes, who operates Vancouver’s West Coast Title Search Ltd., filed libel suits against a number of individuals and companies in B.C. Supreme Court in 2006 and 2007.

In one suit, he names Google Inc. as a defendant. It seeks, among other things, an order requiring Google to provide the names and contact information of anonymous persons who Crookes claims have libelled him and an order requiring Google to block the distribution of the libellous material on its blogsite.