Scientist awarded cyberlibel damages

Saturday, November 13, 2004 - Page A6

An Ontario judge has awarded an archeologist $125,000 in damages after a native man used e-mails to smear her as a "grave robber." The archeologist's lawyer is calling the ruling a precedent-setting one in the emerging field of Internet libel, a notion that may eventually have a chilling effect on the freewheeling ways computer users send messages. "People seem to think there is a level of anonymity to e-mail and the Internet. And that it's a lawless area," said winning lawyer Berkley Sells. "And clearly it is not, nor should it be."

In a decision released this week, Madam Justice Wailan Low of the Ontario Superior Court sketched out a rough hierarchy of what she called "cyberlibel." Posting slanderous remarks on a popular website, where millions of users might pick them up and circulate them, might be one the more egregious uses of technology, she said. But close behind that is e-mailing libellous remarks in an attempt to smear someone's reputation. Clearly, the use of e-mail is far more powerful than the sending out of a multiple of hard-copy letters defaming the plaintiff," Judge Low ruled.

The Internet is rife with people insulting one another, but what made this case defamatory was that the medium was used in a calculated attempt to defame someone's professional reputation. The native man circulated his e-mail widely and asked it to be passed along to as many people as possible. And eventually, the message made it onto the computer monitors of government regulators and the archeologist's bosses. This meant it was "calculated to cause the plaintiff the maximum embarrassment and professional harm," according to Judge Low.

The plaintiff is Cheryl Ross, a prehistoric archeologist affiliated with Wilfrid Laurier University, in Waterloo, Ont., who sued Pat Holley over his comments. Dr. Ross had befriended Mr. Holley's wife while working on the site of an Indian reserve that was once home to a 17th-century Huron village. Court documents indicate that Mr. Holley has long acted erratically, especially as he came to blame the archeologist for the breakdown of his marriage.

The lawsuit said that in October, 2003, Mr. Holley sent more than 30 people an e-mail titled "beware of . . . grave robber cheryl ross archeologist." It asserted that she "robbed" human remains from his driveway, in conjunction with one of her supervisors at the university. "Please forword [sic] this to as many people and list as possible," the e-mail said.

That started a chain reaction, in which the false allegations -- buttressed with pictures of bone fragments that Mr. Holley said were human remains -- were passed along until they reached the registrar of Ontario's cemeteries unit. He contacted Wilfrid Laurier University about the e-mail, and court documents show that exchange led to another one in which Dr. Ross's supervisor e-mailed her to ask: "Cheryl, what the hell is going on? . . . I know that none of this is true but I need to know why they would be accusing you of [this]," the supervisor said. "We need to jump on this soon as it could effect you professionally at least in Canada."

Mr. Holley did not appear in court to defend himself. Judge Low agreed that the e-mail was malicious, defamatory and untrue. General damages were pegged at $75,000 plus another $50,000 in aggravated damages. The judge did this, knowing it amounted to hitting Mr. Holley for all he was worth, or very close to it. In her decision, she said the damages amounted to "equivalent to all or a significant portion of the defendant's assets."

Before this, there has been very little case law in the field of cyberlibel, although a June Ontario Court of Appeal decision was instructive. In that case, a homeless Vancouver man was ordered to pay $125,000 for libelling Barrick Gold Corp. in Internet postings.