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.

The post Rethinking Defamation Law appeared first on IPOsgoode.

This blog covers the second panel that was comprised of (University of Ottawa), (University of Melbourne Law School), Dr. Randall Stephenson (author of ) and was moderated by (Partner, Fasken Martineau DuMoulin LLP).

Prof. Bailey’s presentation ‘Reputation 3.0’ looked at the intersection of law, technology and equality. She talked about that was funded by the LCO and focused on 20 diverse young people from the age group 15-21. The participants were asked about their “online experiences with truth and falsity, reputation and anonymity and the quality and utility of existing mechanisms for responding to defamatory attacks”. The research highlighted that, while untrue statements can hurt their reputations, truth can be equally damaging in the context of confidentiality and privacy. This was consistent with the participants’ behaviour online, where they preferred having multiple reputations crafted for different social media platforms. Consequently, the participants preferred responses that maintained privacy and confidentiality, while preserving transparency and accountability.

Her research showed that young people were concerned about privacy and disclosure of intimate images but they preferred community-based responses to reputational harm over escalating the issue by taking matters to the police.

She concluded by stating a few takeaways for law reform. Firstly, legal provisions for protection of reputation are indeed important for control of information. Secondly, reputational harm is better mitigated by community-based responses to individuals and focus should be on rights-based education, rather than civil and criminal litigation, which is helpful only in the most extreme circumstances.

Prof. Andrew, who researched comparative defamation law of Australia, the US and the UK, spoke about how it ultimately boils down to the doctrinal workings and procedural regulations of each jurisdiction. He was of the view that defamation and privacy are two of the greatest challenges in media law. He stated that, historically, only certain aspects of reputation have been protected, such as material that is true or privileged. He argued that data and privacy are connected and that this can be seen from the plethora of high-volume, low-value cases that are being brought before the courts. He argued that as a result, we need to reconsider our presumption that privacy and defamation are separate spheres of law that need to be treated in isolation, with the occasional intersection between the two.

Dr. Randall, quoting from his own comprehensive comparative analysis, said that there has been a universal rejection of ‘actual malice’ rule outside the United States. The ‘actual malice’ rule is an essential element in proving defamation, where the plaintiff must show that the statement was “”

Yet, he was of the view that comparative analysis is important but that care should be taken since one size does not fit all. The law must be used to restore accountability and should act as a check, considering the ongoing 'fake news' crisis in journalism and how digital mass surveillance is being used by governments and corporates across the world. Both these factors, he warned, would play a significant role in the dynamics of future reform.

Peter Downard stated that the proposed reforms would be an interesting experiment since this would be a rethinking of defamation law from the ground up. He was quick to add a caveat that we must understand the plaintiff and defendant’s relationship when looking at defamation in order to have an accessible justice system. We must consider the context of the defamatory speech. While the standard of proof must not be so low that by default everybody would seem to engage in such speech.

Defamation in the internet age raises some very important questions regarding Access to Justice (‘A2J’) and we need to re-think how reputational harm online is linked to reputational harm offline. While reputation can be harmed with falsity, it is equally possible to damage reputation from private and confidential information. We need to reconsider our presumptions on privacy and defamation and realize that they are linked.

Today we face an unprecedented assault of misinformation, fake news and falsities, and law reform needs to tread carefully. While it must balance free speech and privacy interests of individuals, consideration needs to be made towards A2J in the face of the onslaught of high volume, low value privacy cases that threaten to clog down our justice system.

It will be interesting to see how the legislature responds to future reform, especially considering how we have treated privacy and reputation as two separate spheres of law. While we grapple with ‘fake news’ and mass surveillance, we must restore accountability and truth. Not just for the big guys but also for the most vulnerable section online, the kids.

Prasang Shukla is an IPilogue Editor and recently completed his International Business Law LL.M. from Osgoode Hall Law School.

The post The Harms and Values Underlying Defamation Law in the Internet Age appeared first on IPOsgoode.

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

The post Jurisdiction, Anonymity and Unpublishing - Frontline Problems in Resolving Online Defamation Claims appeared first on IPOsgoode.