In 2010, the Ontario Superior Court of Justice issued a third party takedown injunction against Google’s Blogspot platform, ordering the removal of subdomain hosting a blog allegedly dedicated to defaming Canadian National Railway Company (“CNR”) and its senior employees. (para 16)
The commentary on the blog contained serious allegations against senior CNR employees and their operation of the company, alleging fraud and safety violations. While the anonymous operators of the blog did not file any defence, the court nonetheless found the statements on the site to be defamatory on the basis that it provided no support for its allegations and that the blog’s operators were duly served, and had even posted entries on the blog discussing the lawsuit.
No liability was alleged against Google, as the mere host of the blogging site. The court recognized that issuing injunctions in such instances raises freedom of expression concerns and as such is extremely rare. The court nonetheless issued the injunction on the basis that the material on the site was very clearly defamatory in nature, and that its anonymous authors, while demonstrably aware of the lawsuit, did not seek to justify their statements. (para 32)
While the court in Canadian National Railway recognized a nominally restricted approach, the freedom of expression risks inherent in a content removal process that presumes defamatory content is false remain tangible. An anonymous whistleblower, for example, and particularly one based in a foreign jurisdiction might not have the means or fortitude to defend their truthful claims in a distant court.