Photo by Artem Beliaikin ()

Meena Alnajar is anÌęIPilogueÌęWriter, IP Innovation Clinic Fellow,Ìęand a 2L JD Candidate atÌęOsgoodeÌęHall Law School

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Following its worldwide premiere on November 24, 2021, the biographical film House of Gucci may face for its depiction of the Gucci family. The film is on Maurizio Gucci’s life leading up to his murder by a hitman hired by his ex-wife Patricia Reggiani, played by pop star Lady Gaga. The Gucci family’s heirs spoke out on how the film inaccurately represented the family members as The family stated that they would to protect their name, hinting at forthcoming legal action. Given that the film relies heavily on the Gucci name, there are concerns as to what legal ramifications director and the production company could face.

Who Owns the Name

Since the film discusses both the Gucci family and the Gucci brand, it may be helpful to examine each mark. The Gucci family is attributed to the family members and as such has no technical legal protection. The word ‘Gucci’ however, is also a fashion brand currently owned by the French corporation . Therefore, the family has no legal control or stake in the Gucci name as a brand. Gucci has been trademarking as a fashion brand , garnering over one hundred marks. In addition to registrations for the word Gucci, the brand has several design marks such as its renowned double Gs.

Trademark owners can to the use of their trademark in media and film and file a trademark infringement suit as a result. For the House of Gucci film, the fashion house with the filmmakers to let them use the Gucci wardrobe. There was evidenced consent in the matter, so the film is unlikely to face a trademark infringement suit. Further, most brands reject use of their registered marks because they worry people will get as to who owns the mark. Since the movie’s purpose is to detail Gucci’s ownership of the brand, there is little possibility that audiences would get confused as to who owns the ‘House of Gucci.’ However, the family may still be able to claim defamation for how their likeness appeared on the screen.

What Actions Could the Real Gucci Family Take?

The Gucci family felt in the film, and so they may have grounds for defamation, a civil lawsuit. Though its statutory definition varies between jurisdictions, is generally where one’s reputation has been harmed due to a negative depiction, such as a film that represents them in a negative light. A claimant needs to that the negative depiction is about them, that there were remarks that could cause them serious harm, and that these remarks were circulated to a wider audience. In response, a filmmaker must ground the representations in truth as best as they can. There should be some or fact that would support the claimant’s representation in the film. House of Gucci is based on a non-fiction book by fashion reporter , so the filmmakers could possibly rely on the book as evidence to explain the Gucci family’s depiction in the film.

Narrative films often embellish and exaggerate to captivate audiences, but the filmmakers for House of Gucci may face legal consequences for their creative decisions. The real Gucci family may not have grounds to sue for the Gucci mark, but they could move forward with a defamation suit for the many faces behind the double Gs.

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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 toÌę, 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 toÌę, 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]ÌęAside from some glib references to ‘dignity’ in Hill v Lucas

[2]ÌęPizza 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]ÌęSee 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]ÌęInternet 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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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.

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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 courtÌęincreased predictability and certainty in the “real and substantial” test for assuming jurisdiction. In the context of tort actions, a court may assume jurisdiction based onÌę, 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, Ìęheld 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 Ìęcontent 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 Ìęadvocates against the "right to forgotten" as an infringement of the freedom of press and theÌęCharter. 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”).Ìę The report alsoÌę 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?".Ìę 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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The first panelist to speak, Professor of the University of Calgary, laid the groundwork for why online defamation is an area of law that needs an overhaul. First, she noted that Facebook alone receives over 2 million defamation-related complaints per week, almost all of them requesting only a removal of the content. This means we are dealing with a high volume of low cost cases and this does not reflect traditional courtroom lawsuits that are generally centered on financial damages and thus can be worth the litigation cost. Second, the question of jurisdiction remains unclear, as defamatory statements made online do not easily fall into a single jurisdiction when the interaction is online and crosses provincial or national borders. Third, claimants do not have simple options to resolve their claims. Currently, claimants can complain to the service provider (if the defamatory statement was made on a social media service) or sue in court. Professor Laidlaw pointed out the shortcomings of both options and why there needs to be a new alternative.

The first option places control of the dispute in the hands of private companies like Facebook and Twitter who have their own terms and conditions that define the rights of the parties. This lacks the legitimacy, due process, and standardization that a dispute resolution framework needs to be effectively operate. The second option means expensive litigation over jurisdiction to bring the action and then to obtain an injunction. Furthermore, Prof. Laidlaw pointed out that most claimants just want a comment deleted from the internet, not damages, and the cost of bringing the claim in court is disproportionately large.

The second panelist, Professor , Director of the US National Center for Technology and Dispute Resolution, spoke of measures that some large companies have employed to resolve high volumes of small online defamation claims. For example, companies like Alibaba and eBay have implemented ODR technology that resolves 80-90% of complaints between buyers and sellers through automated processes. This leads to enormous savings of time and cost, as Alibaba and eBay alone receive 100 million and 80 million such claims, respectively, each year.

Since online defamation disputes can be resolved through automated online processes, Professor Katsh’s discussion focused on how these disputes can be prevented through ODR technology. He pointed out that online defamation is not the only area that ODR can be effective, and that the legal world should be more focused on implementing ODR in disputes that do not require substantive legal analysis and judgement.

For example, Prof. Katsh pointed out that mediation is about controlling the interaction between two parties without imposing a final decision, a process perfectly suited to computers through automated messaging applications. Another area is when online platforms do not verify the accuracy of users’ identities, which can lead to defamation claims based on comments that were made by an avatar, a robot, or people misrepresenting themselves. Computer programs can verify the accuracy of records, which filters out claims against bots and other non-human online interactions.

Finally , a lawyer for the BC Government and adjunct professor at Osgoode and UVic, spoke about the newly launched (“CRT”) in BC: an online tribunal that resolves small claims and condominium disputes through an automated mediation process. While the CRT is not available for online defamation disputes, it is a model for future ODR technologies in other areas of the law. The CRT seeks to achieve the same efficiencies that private companies like Alibaba and eBay have achieved by resolving most disputes without any human interaction. The CRT features a diagnosis and self-help portal that helps claimants categorize the type of claim they wish to make and what their options are, followed by an online monitored chat where parties can exchange communication and attempt to reach a settlement. If a settlement cannot be reached, lawyers for the BC Ministry will intervene and adjudicate the matter.

The panel discussion shows there are ODR regimes in place that are effectively reducing the stress on the justice system in areas where the nature of the dispute does not involve significant financial or criminal risk. Online defamation claims fit the ODR model well because they tend to be equitable claims for a deletion of a defamatory comment, not a claim for damages.

At the same time, there are unresolved questions: Would ODR be mandatory or optional? What if there are many claimants launching a class action against a single individual? What if the system crashes? Even if the defamatory comment is taken down, what if it has already been copied and re-posted? Notwithstanding these concerns, online defamation consists of a staggering multitude of small claims. Imposing a simple automated solution to resolving these disputes would be a cost-effective way to reduce some stress on the justice system and make the internet a more civil place.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The panel on “Responsibility for Defamation and the Problem of Intermediaries” tackled the issue of liability of internet service providers (“ISPs”) for disseminating or maintaining defamatory content online. Scholarly and industry-savvy panelists grappled with traditional concepts and doctrines in an attempt to formulate a new theory of responsibility for ISPs. Three routes were proposed by the panelists: (1) ad hoc inquiries into fair balance, (2) adoption of the least invasive means and proportionate measures; and (3) revamping the publication rule.

No one is certain that these efforts will resolve the problem of online intermediaries, so looking to the courts’ current take on the matter may hint at additional existing routes and at the likelihood of success of the efforts proposed by the panelists.

Fair Balance

, lecturer at the University of Cambridge, discussed the different notice regimes applicable to ISPs in relation to uploading and downloading content of a user. A novel system of “notice-and-fair-balance” was proposed with a view to reconcile fundamental rights of the different the stakeholders in the triadic relationship between the injured party, the intermediary, and the internet user. The panelist argued that freedom of expression, the right to communicate and to conduct a business, as well as reputational rights, are of equal caliber and should co-exist alongside each other, without a priori recognition that one trumps the other. A desirable solution, she noted, is to conduct ad hoc inquiries into what, in the particular circumstances, represents a fair balance between rights and compromises.

Regardless of the speaker’s endeavor to shed light on what fair balance might mean and how it can be conceptualized, she conceded that striking a balance is easier said than done and that it is most often seen as an empty slogan unlikely to provide real solutions. The current position of North American courts on online intermediaries’ liability (see and ) in fact implies that courts are looking beyond fair balance in these circumstances; their primary goal, instead, is preventing multiplication of wrongdoing on the internet.

Proportionality

Bram Abramson, Open Web Fellow with the Mozilla foundation, pointed that the traditional innocent dissemination doctrine underlying the liability regime applicable to ISPs still leaves constitutional questions unaddressed. To some degree, there is still a restraint on the ISPs’ ability to communicate freely, disseminate information, and carry on business, because the system subdues ISPs to liability unless they take down content upon notice. This, Bram argued, does not represent the least invasive means to remediate the dissemination of defamatory content, as a chilling effect is almost certain in these circumstances and is an incentive to removing content to avoid exposure to liability. Engaging proportionality may thus keep ISPs from bearing responsibility for defamation when other efficient and least invasive measures are available. In this context, the creation of a regulatory framework that allows the ISPs to act autonomously without the involvement of authorities, as well as other mechanisms for online dispute resolution, seem reasonable routes to follow.

This view, however, is not aligned with the current take of North American courts in regard to online intermediaries’ liability. Although free expression may seem compromised in some instances, Canadian and American courts agree that sustaining freedom of expression values of unlawful acts on the internet. As with the use of , the courts appear to have signalled an intent to create a “duty to assist” a person wronged with no resort other than relying on non-parties who are not themselves guilty of wrongdoing. As explained in fullness , a principled rationale for granting orders against intermediaries seems to be needed to bring the rule of law to bear on the Internet to rein in illegal activity, to remediate wrongful actions taken under the cloak of anonymity, and to enforce ignored takedown requests and orders (more ).

As to the creation of more proportionate means of dispute resolution, there seems to be no restriction imposed by the courts on autonomous mechanisms for more efficient responses.

Revamping the Publication Rule

The breadth of activity captured by the traditional publication rule, as Professor of the University of New Brunswick noted, is too vast, capturing even the narrowest scope of ISPs’ activities in linking or highlighting defamatory content. As a result, she argues that a new theory is necessary so that ISPs are not easily liable as defamers when they never created defamatory content. Professor Young proposed that the new concept of publication encompass a knowing involvement in publishing the relevant words (per ; ).

Re-conceptualizing publication, however, does not seem to resolve the problem of online intermediaries either. To the extent that the courts have signalled that their primary goal is to prevent further dissemination of illegalities in general in the internet space, the determination of who to attribute blameworthiness to loses relevance where a multitude of actors may be involved. As a result, whether or not ISPs can be deemed publishers in a strict sense will unlikely interfere in how ISPs should be engaged in halting defamatory content in the internet.

The Bottom Line

In Canada, Equustek brought about a fundamental shift in the parameters of the debate around online intermediaries liability. As a result, traditional concerns involving notice regimes, the breadth of the concept of publication, and the doctrine of innocent dissemination became less relevant. Equustek signals, in broad strokes, that the courts are unlikely to allow actors to avoid the rule of law in the internet space. This approach does not require intermediaries to decide which content is defamatory but it does engage ISPs in a duty to assist a wronged party in response to harm caused by unreachable wrongdoers. The decision may be unpalatable for advocates of free expression and unrestrained right to communicate. However, it represents the courts’ view on how to rein in illegal activity in the context of fast-moving and far-reaching developments in technology and social values. This view might be worth considering when we think about reform of defamation laws.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91ŃÇÉ«.

The post Fair Balance, Proportionality and Revamping the Publication Rule — Will these Efforts Resolve the Problem of Online Intermediaries? It’s Unlikely. appeared first on IPOsgoode.

After graduating with a law degree from Oxford, A.P. Herbert decided to serve the British people by making law as a Member of Parliament instead of practising it as a lawyer. Nevertheless, he had much to reveal about judicial prejudices and to teach about legal processes in that he authored in , and were televised by the

dealt with the question of when literary criticism became defamatory. As summarized by the court, “The facts are simple enough. The defendant, Mrs. Tulip, in reviewing a recent work of Miss Clelia Trott’s, a book called Midnight, employed the following words: ‘It is no good, Miss Trott. All your murders and detectives, your vamps and mysteries, do not deceive us, charming though they are. The truth is, Miss Trott, you are a bit of a highbrow.’ Miss Clelia Trott, so far from being disarmed by the sprightly and almost complimentary manner of review, has brought an action for defamation, complaining particularly of the word ‘highbrow’, which is said to have prejudiced her professionally as a writer of disturbing narratives for railway reading or, as they are sometimes called, it appears, ‘best-sellers’.”[1] The court found for the plaintiff because it agreed that being characterized as highbrow was “so revolting that no lady or gentleman of right feeling could well submit to be named by their name without some effort to secure such protection as the law affords.”[2]

Case No. 11 Suet v Haddock was equally unforgiving in finding that commercial criticism can also be defamation. The jury was instructed as follows, “Gentlemen, in this case the plaintiff is a manufacturer, and the defendant, Mr. Haddock is among other things, an author, which fact should alone dispose you in the plaintiff’s favour; for, while the lifeblood of our country is its trade and commerce, we do not, fortunately, depend upon our literature for anything that matters.[3] 
 The plaintiff manufactures, among other things, a patent medicine called SINKO, which is widely advertised as having the power to remove or remedy ‘That Sinking Feeling’. Now what the defendant wrote about SINKO was brief and blunt: ‘SINKO does not remove That Sinking Feeling, for I have tried it.’ The plaintiff says that these words are defamatory and claims damages. The defendant says that the words are true, or in the alternative that they are in the nature of fair comment upon a matter of public interest.”[4] It is interesting to note that the jury in this case was instructed to award damages of ÂŁ10,000 pounds for commercial criticism, whereas the previous case only awarded damages of ÂŒ of a penny for literary criticism. Was this the natural result of the bias favouring trade & commerce over arts & literature? Or could it also be due to another bias arising from the fact that this plaintiff was a man while the previous plaintiff was a woman?

Case No. 35 Bacon v Egg; Kidney v Egg may shed some light on the above questions. Mr. Bacon wrote a play entitled Between Ourselves. Mr. Kidney is the theatre manager who staged it. Mr. Egg is the dramatic critic who published a negative review of it: “Dialogue, deplorable; plot, puerile; characterization, childish 
 The fact is, Mr. Bacon does not begin to know his business; and after this production we begin to doubt whether Mr. Kidney knows his.”[5] The jury awarded damages of £10,000 pounds for this dramatic criticism[6] – the same amount a man had received for commercial criticism. Perhaps we should not hasten to compare these cases through critical feminist perspectives; after all, there is an obvious difference between characterizing a woman as “highbrow”[7] and characterizing a man as “incompetent”.[8]

As entertaining () as his misleading cases were, A.P. Herbert always remembered that they were fiction. The same cannot be said of his readers. reported Case No. 32 Board of Inland Revenue v Haddock as a real case with the heading, “A Check Can Be Written On A Cow.”[9] reported Case No. 5 Rex v Haddock to illustrate how no American court could violate “the general maxim that people cannot be punished for violating laws that have not been announced and defined”[10] by quoting the following paragraph from the offending British opinion: “‘It is a principle of English law’ said the Court of Criminal Appeal, ‘that a person who appears in a police court has done something undesirable, and citizens who take it upon themselves etc., etc., (exactly as above) 
 It is not for me to say what offence the appellant has committed, but I am satisfied that he has committed some offence for which he has been most properly punished.’”[11] That legal publication also indexed the fake reference of Rex v Haddock, C.C.A. miscellaneous law, Criminal Law (31) 1927.

Was that entertaining? Or was that dangerous? Just as not all that glitters is gold, not all fake news are equally tongue-in-cheek. If we do not learn about history, we will not learn from it and are doomed to repeat it.

Shen Goh is an instructor and PhD candidate at Osgoode Hall Law School.

[1] AP Herbert, Uncommon Law – Being 66 Misleading Cases revised and collected in one volume (Great Britain: Redwood Burn Limited, 1979) 42 at 43.

[2] Ibid at 52.

[3] Ibid at 66.

[4] Ibid at 68.

[5] Ibid at 224-225.

[6] Ibid at 229.

[7] Although the female’s complaint was that the term ‘highbrow’ prejudiced her professionally, the court ignored the issue completely.

[8] Although the men’s complaint was that “Mr. Egg was not invited to express an opinion at all” (Ibid at 225), the court replaced their baseless complaint with its own lengthy discussion on how an honest opinion may still be professional defamation (and decided within that discussion that arts & literature should be equal to trade & commerce): “For example, it is defamatory to use expressions reflecting upon a man in the way of his trade, profession, or calling. The law of this businesslike land is jealous to protect our professional reputations; and spoken words reflection upon them (by a special exception to the general law of slander) are actionable per se, without proof of special damage. To say of a doctor that he had no knowledge of medicine, of a solicitor that he knew nothing of the law, or of a banker that he did not know his business would without doubt be defamatory, however honestly the opinion was held and however moderately that opinion was expressed. 
 There cannot be one law of libel for the author and another for the financier. An imputation of profession incapacity or unfitness is as damaging to the one as it is to the other; and each must be entitled to the same remedy at law, unless we are prepared to say that the author is a kind of outlaw, of having a lower status than the solicitor or business man and entitled to a lower standard of justice. Unfortunately this view is very commonly held, and it has been encouraged by the feeble acquiescence or noble disdain of the writing profession; but in this Court it will receive no encouragement. I hold that the author, however loathsome to the ordinary citizen, is in the eyes of the law a professional man; and the newspapers must be as careful what they say about his professional fitness as they would in the case of a surgeon.”

(Ibid at 228-229) [Emphasis added].

[9] Ibid at Introduction.

[10] Supra.

[11] Supra.

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Until recently, Canada did not recognize protection for invasion of personal privacy per se between individuals. This position was seen in the Ontario Superior Court of Justice decision in , where Whitaker J. found that a freestanding tort of the invasion of privacy did not exist in Ontario. Jones v. Tsige was a case where the defendant improperly accessed the plaintiff's private banking information in an attempt to confirm whether the plaintiff was receiving child support payments. The Superior Court of Justice notedÌęthat Canadian courts were reluctant to recognize a separate right in light of the Ontario Court of Appeal’s decision in ,Ìęwhere the court noted that there is no "free standing right" to dignity and privacy under the charter, and dismissed the plaintiff’s claim on the basis that Ontario law did not recognize a tort of breach of privacy. This position was criticized by many academics and even under IP Osgoode in by David Vaver.

This position was reversed by the Ìęin a decision two weeks ago, whereby Sharpe J.A. recognized a new tort, “intrusion upon seclusion”, finding that aggrieved parties should have recourse for violations of their privacy, especially in an age where vast amounts of private information is generated and stored. Summary judgement was granted in Jones' favour, with damages amounting to $10,000.

A similar case was decided in the England and Wales High Court, , where a dispute between two directors of a company led to supposedly private conversations being used in a malicious way to make false allegations about the health of one of the directors. The director, Mr. Cooper, was having a private discussion with anotherÌędirector, whereby he disclosed certain health issues he was facing in a manner that was explicitly confidential. The CEO, Mr. Turrell, had the room “bugged”, andÌęmade public allegations about Cooper’s health on both his blog and Twitter account, embedding the transcript and the recording of the discussion. In coming to his decision, Tugendhat J., granted a permanent injunction for the plaintiff andÌęa rather large sum of damages to Mr. Cooper: ÂŁ50,000 for libel, an additional ÂŁ30,000 for misuse of private information. It was also notedÌęin obiter that had there been only misuse of private information, he would have given ÂŁ40,000 in damages.

These cases demonstrate a growing trend around the world towards extending the common law to provide legal protection where one member of the public misuses the private information of another. In the ever-evolving reality of technological advances, it has become trivially easy for a malicious party to capture the personal and private information of an individual, and it is a welcome sight to see the Courts starting to take an active role in demonstrating that this form of behavior is not acceptable in today’s society.

Brian Chau is a JD candidate at Osgoode Hall Law School.

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The UK Ministry of Justice recently published a consultation paper entitled "". The consultation revisits, as its name would suggest, the multiple publication rule currently in use in the UK in light of the internet and online news archives. Several alternatives are considered, most notably a single publication rule similar to the one used in the United States. The issue boils down to when the limitation period for defamation should begin. Under a single publication rule the limitation period would start when a libellous article was first published, whereas under a multiple publication rule each subsequent publication of an article would create a separate cause of action and reset the limitation timer. Applied to the internet that means that every time a libellous web site is loaded the limitation period is extended, effectively allowing it to go on forever.

The government consultation comes in the wake of a earlier this year in which the court declined to strike down the multiple publication rule as a violation of freedom of expression. Opponents of the rule argue it's unfair to publishers because it allows people to bring forth claims for articles which were written way in the past. The rule isn’t new by any means; it goes back to a 19^th century case Duke of Brunswick v. Harmer[1] where an agent of the Duke found a libellous article in a 17-year-old back copy of a newspaper article. Yet the problem has been exacerbated by the internet where most newspaper and magazine articles are archived online indefinitely. Ontario and most other common law jurisdictions besides the United States use the multiple publication rule.

Does it make sense to allow claimants to sue for an article which was originally published outside of the limitation period and that only exists as an online archive? On the one hand, the (potentially) libellous material is still out there for people to read and depending on the context of the article it could be just as offensive years later as when it was first published. Furthermore, if a claimant only becomes aware of the offending material through the archive then it may be unfair to not let them make a claim. Under a single publication rule there would also be no incentive for publishers to update archived defamatory material once the limitation period from the original publication had passed.

On the other hand, the multiple publication rule does raise the possibility of indefinite liability for defendants. It may be extremely difficult for defendants to mount an effective defence to defamation years after publication when key records and witnesses are gone. The rule is a disincentive for publishers to archive their materials at all and creates a requirement to constantly maintain web archives.

One solution suggested in the consultation is to extend a qualified privilege to accommodate web archives in certain circumstances. Under this model publishers would not be liable for web archives unless it was shown that they were neglectful in updating an archive when the print version was shown to be defamatory. At the very least publishers would need to put warning notes on defamatory web sites (something to the effect of “the print version of this article was found to be libellous”).

Another option which the report doesn’t seem to consider would be to keep the multiple publication rule but start the limitation period for websites at the time of posting or latest update. The absurdity of the rule applied to the internet is that the timer is reset each time a reader loads a website. So, why not start the clock the last time the author/publisher touches the article? Sites like the can provide a history of the internet, chronicling what’s changed over time. Under such a system the onus would be on publishers to keep records of their updates to prove they hadn’t changed anything. This would seem to this blogger to be a feasible solution in the spirit of the defamation law that avoids the pitfalls of the multiple publication rule.

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Last Tuesday, the British Columbia Court of Appeal affirmed an important precedent-setting decision of the British Columbia Supreme Court regarding online defamation in Crookes v. Newton., . In the decision, Justice Saunders and Bauman found against the plaintiff Wayne Crookes who argued that the defendant was liable for linking to defamatory material online. Justice Prowse expressed a dissenting opinion. One can find more information concerning the decision of the Supreme Court of British Columbia in the article “”.

In the decision of the Supreme Court, Justice Kelleher dismissed Mr. Crookes’ action on the basis that the hyperlinks did not constitute ‘republication’ by comparing the hyperlinks to a footnote where the reader has no actual knowledge of the defamatory material. At the Court of Appeal, the judges addressed three points in their decision: whether or not there is a basis for finding a presumption of publication of the hyperlinked articles, whether or not hyperlinking is a form of publication, and whether or not one can infer publication to at least one party.

All the judges agreed that there was no presumption of publication. However on the second point the dissenting judge held that the hyperlinks (when viewed in the context ofÌę the Newton article as a whole) did not operate as a mere footnote. She found this because the article deals with free speech and defamation, and the reference to lawsuits involving Mr. Crookes would have served as “words of encouragement” to look further. Also on the third point the dissenting judge held that one can infer publication to at least one party since the article on Mr. Newton’s p2pnet site had been viewed 1,788 times despite Mr. Crookes not possessing evidence that a third party had actually accessed the hyperlink to the impugned articles.

The opinion of the dissenting judge is worthy of more examination, in that she found that the context of the hyperlinks in Mr. Newton’s article constituted an invitation to look further while the majority judgement held that the same context would “alert the reader to the potential of untrue content”. What a hyperlink implies – an invitation to investigate a defamation suit further or not, or whether or not the information it points to should be taken as the truth – depends on the context and also on the particular label used for the hyperlink. In most instances, like that of Wikipedia, a hyperlink with a label of a proper name like Wayne Crookes would imply that one would click the link for more true information about this person. The question is this: given the context of Mr. Newton’s website – free speech and defamation suits on the internet – what is implied by the label of the hyperlink?

The other point raised by the dissenting judge here is whether publication can be inferred. The question needed to be answered here is whether anyone clicked on the link and viewed the page in the relevant jurisdiction of British Columbia. Mr. Newton’s article had 1,788 hits, but there were no further statistics. Many websites do have further statistics: not only will they count the number of hits for each page, but they will also list which countries contributed to what percentage of the hits. They will also track the referrers – that is, which other websites are linking to their pages. If the allegedly defaming websites tracked their referrers, they could determine how many people followed Mr. Newton’s hyperlink.Ìę Additionally, if Mr. Newton tracked how many people from Canada had viewed his page, these two pieces of information together would give a good idea of the odds that someone from British Columbia had viewed the page and then followed the hyperlink.

In paragraph 84 the majority states that the particular circumstances of an article,Ìę such as its context, may result in another judgement as to whether there will be liability for hyperlinks. Nevertheless, freedom of speech will continue to remain on the Internet, at least until an article is found where its context or the label of its hyperlinks do demonstrate an invitation to view the impugned site or an adoption of its contents (orÌęthe site'sÌętraffic can be deduced).

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