Defamation Law in the Canadian Context

Prof. Jamie Cameron opened the discussion by noting that there is not a conclusive social theory of defamation in the Canadian context [1], and, therefore, at some point, Canadians will have to determine, in specific, why we care about reputation. Nevertheless, Prof. Cameron stated, the absence of foundational principles concerning defamation law should not preclude us from developing the law surrounding internet defamation.

Each panellist agreed that the tort of defamation is overly easy to establish and unfair to potential defendants. In Ontario, the tort of defamation is one of strict liability, and there is no cap on the damages that can be awarded in a successful claim. Furthermore, the LCO has stated ,” and, as Brian Rogers noted, this can have a chilling effect on journalists and the media who must report on news that could damage the reputation of the parties involved. Thus, as Rogers put it, because the media performs a critical role in society, by informing the public about the world around them, guarding the freedom of the press against frivolous and vexatious defamation claims is crucial for effective democracy.

Despite issues with the Canadian approach to defamation cases, Rogers sees a definite trend emerging in the law to address unfair advantages held by the plaintiff. For example, prior to , only the plaintiff could define the meaning of the alleged defamatory expression. Now, defendants can put forth their interpretations of meaning and prove them valid.[2] Another example is how prior to , Ontario courts instructed jurors that only a “fair-minded” criticism was acceptable as expression. This was problematic because what was “fair-minded” more often pertained to beliefs that the juror also shared. Now, the fair comment defence has been strengthened to include expression that could be honestly expressed by someone based on proven facts provided it is not malicious. Following this, the SCC in added further protections to those who take reasonable steps to verify the truth in what they are publishing. Finally, anti-strategic lawsuit against public participation (SLAPP) legislation has been passed in many provinces including Ontario in 2015.[3]

Considerations Moving Forward

The purpose of the LCO’s project on Defamation Law in the Internet Age is to determine ways to reshape the law. To guide our reform, Cameron highlighted five critical points of consideration. First, what aspects of an individual’s reputation are we are trying to protect? Second, what to an individual’s reputation and are defamatory? The internet and social media have obfuscated our understanding of this because our notion of reputation is increasingly fluid, ephemeral, open to challenge, and less protectable. Also, when we are answering the first two questions, we must also consider what community values we are using to establish our framework. After all, the internet has broadened the concept of community to more than just a physically measured locale. Fourth, it is essential to recognize that the internet has also provided a broader avenue for counter-speech and counter-measures to defamation. Further, . Lastly, the advancement of technology has made the enforcement of publication bans increasingly difficult. As Justice Lamer put it in , the “jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity”.

Andrew Scott expanded on the challenges that come with technological advancement. .[4] We must strike a balance between protecting them from frivolous litigation, on the one hand, and ensure they are not perpetuating defamatory claims, on the other. Scott noted that we must also be aware of the co-development of doctrines in privacy law and data protection law on shared topics like internet intermediaries.

Scott also discussed the challenges that arise after legislation is passed. At the moment, the LCO is considering if Ontario should adopt a in establishing the tort of defamation. This would mimic the UK Defamation Act, 2013. However, has shown that determining what is “serious” has not been consistent. In , Scott remarked that the Court of Appeal chose to ignore the relevant legislation, and, instead, applied the pre-existing common law. Interestingly, in the Canadian context, Rogers noted that the most significant reforms have happened through case law and not legislation, and, thus, it will be interesting to see how the Ontario Court of Appeal interprets their .

Ultimately, we must consider multiple factors when discussing reforms to defamation law in the internet age. Recognizing the relevant factors and learning from how other jurisdictions have dealt with similar challenges is a prudent start when deciding how to reform our system.

Sebastian Gorlewski is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

[1] Aside from some glib references to ‘dignity’ in Hill v Lucas

��2������izza Pizza Ltd v Toronto Star Newspapers Ltd, 1998 Ont Ct Gen Div (http://canlii.ca/t/g19tz). See ‘Analysis’ section for why previous restrictions were problematic.

[3] See backgrounder on Ontario Protection of Public Participation Act for some of the problems associated with SLAPP (https://news.ontario.ca/mag/en/2015/10/protection-of-public-participation-act.html).

[4] Internet Intermediaries are online platforms which host and provide access to content. They are the subject of discussion in panel 3 of the conference.

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Too easy to assume jurisdiction in this global mess

After a brief overview of Canadian jurisprudence on when the courts should assume jurisdiction over extra-territorial matters, , one of Canada’s leading media and constitutional lawyers, expressed his concerns over Canada’s tendency to develop over-reaching rules on exercising jurisdiction over foreign defendants.

For a long time, issues of the choice of jurisdiction in private international law disputes have remained thorny for the bench and for the bar. However, recently in, the court increased predictability and certainty in the “real and substantial” test for assuming jurisdiction. In the context of tort actions, a court may assume jurisdiction based on , as identified in Van Breda, however, these presumptive factors are subject to a defendant’s rebuttal.

The tort of defamation, as Mr. Schabas noted, is committed “where the words are read”. If read from the internet, the tort is committed where the offending content is read or downloaded. In such cases, the ) has implied that the jurisdiction in which the offending content is downloaded is the appropriate forum for the dispute. This, however, may result in conflict among multiple international jurisdictions. Nevertheless, a forum may decline jurisdiction in cases where a more appropriate forum is available to the parties. In order to avoid becoming the next country, Mr. Schabas argued that there has to be a lot more restraint in this respect in Canada.

In ., the issue involved whether the court can order Google to globally de-index websites. The SCC held that on balance, a worldwide order is the only effective way to mitigate harm to Equustek. In dissent,  held that “While the court had jurisdiction to issue the injunctive order against Google, it should have refrained from doing so.”

In dealing with international defamation disputes, as Mr. Schabas pointed out, Canada needs to be wary of issues of comity with respect to other countries that have less robust rules on protecting freedom of speech. In addition, it would be difficult to enforce decisions which are global in nature, especially in countries like the U.S, where freedom of expression is strongly protected. For example, when granted Google a temporary injunction blocking the enforceability of the Canadian order in Equustek in the U.S., the District Court held, “Google is harmed because the Canadian order restricts activity that Section 230 protects.” The company was held to be protected as a neutral intermediary under Section 230 of the Communications Decency Act 1996.

Anonymity breeds defamation

, drawing from her experiences in dealing routinely with cyber-bullying cases, raised issues about individuals using social media and harassing others behind a veil of online anonymity. She noted that anonymity makes online defamation cases unique and raises concerns of access to justice. A of Abraham Lincoln which said, “...if it’s on the internet, then it must be true...” illustrates how a person may perceive any information available online. As Ms. Zemel argued, anonymity breeds defamation and therefore, lifting the cloak of anonymity can resolve a majority of issues without having to take the road of expensive litigation. However, she also lauded the high threshold test to obtain , which helps to protect individuals’ Charter rights and particularly, the right to remain anonymous on the internet.

Accessibility is an important consideration and, presently, the process to remove content following a take down request is complicated, costly and comes with minimal chances of success for individuals filing those requests to the ISPs. Under the current regime, Ms. Zemel said a lawyer’s advice would be along the lines of “..it is going to cost you a lot of money and maybe there is 50% chance to resolve your issue”. Ms. Zemel recommended a hybrid independent tribunal, such as tribunals for domain name resolution, and notice and notice provisions under the copyright regime. Ultimately, there is a need to involve intermediaries and plot responsibilities unanimously, argued Zemel.

Take it down, it’s not what I want!

are alike in not accepting the increasing number of requests to “unpublish” content. As from the Toronto Star noted, reasons for “unpublishing” requests vary from simple source remorse or not liking the picture anymore to the most vexing ones involving criminal charges. Generally, media companies do not take down  content once it is published because of underlying policies on ethics and transparency. However, in situations where criminal charges are withdrawn shortly after an arrest, where someone is acquitted or discharged, media policy allows alteration to the existing content. This is usually achieved by way of the addition of an editor’s note at the top of the published article.

Similarly, the  advocates against the "right to forgotten" as an infringement of the freedom of press and the Charter. However, any potential changes in may impact these policies.

The in a recent report announced that the ability to request de-indexing and takedown, and the remedies related to online reputation already exists in the Act (“PIPEDA”).  The report also  the European Union version of the "right to be forgotten". For Mr. Schabas, the report is provocative but it falls short of balancing privacy rights with the freedom of expression.

Regarding “unpublishing” requests, debates are ongoing with respect to what are acceptable “legal and compassionate” grounds for approving these requests. As Ms. English mentioned, the is working on policies and trying to answer hard questions such as, “Who should decide on unpublishing requests?”, “Do media companies really want their content taken down without their consent?".  All in all, the media industry's move to revamp their policies in order to balance the public interest with their long-standing ethical values regarding online and offline publications is a move in the positive direction.

Haramrit kaur is an IPilouge Editor and a LL.M candidate at Osgoode Hall Law School

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