Nikita Munjal is the IPilogue Content Manager, an IP Innovation Clinic Fellow, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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In January 2021, the then-acting president of the United States, Donald Trump, from Facebook for statements he had made in the immediate aftermath of the violent insurrection which took place at Capitol Hill. Trump’s comments were seemingly the last straw for the social media giant who had repeatedly cited its commitment to upholding free speech in defending its stance on Trump’s use of inflammatory language on the platform.

However, Facebook’s decision in January was not final. When accounts are banned or posts are removed from Facebook or its subsidiary, Instagram, users can appeal the decision to the quasi-judicial body, Alternatively, Facebook can refer cases to FOB to determine whether its decision had been fair, as was the case here.

FOB’s Decision

In early May 2021, the that Facebook was justified in suspending Trump’s accounts. However, they stated that it was “not appropriate” for Facebook to impose an indefinite suspension, which contravened Facebook’s standard operating procedure. Facebook’s penalties usually pertain “removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account” (at p.1). FOB gave Facebook six months to reexamine its arbitrary penalty and give an appropriate penalty based on the gravity of the violation and the prospects of future harm.

Facebook’s Response

In June 2021, approximately a month after FOB’s decision and within the six-month time period, Facebook : Trump’s suspension from Facebook and Instagram will last for two years, effective from the initial suspension date. However, at the end of the two-year period, Facebook will reassess whether the risk to public safety has receded.

Unsurprisingly, this set of decisions has garnered mixed reactions. Some writers have stated that this is a victory for Trump, who could return to the social media platform in time for a potential 2024 presidential run. Others have argued that this is a victory for Facebook since it could decide whether to continue to the suspension or allow Trump back on its platforms Ěýbased on the political landscape at the time while hiding their rationale behind the risk posed to public safety.

Broader Implications for Free Speech on Social Media

Trump’s social media presence during his presidency exacerbated the discourse around regulation and moderation of content posted on social media. Specifically, questions have arisen as to whether corporations or governments are better positioned to regulate content on social media.

Some industry members including FOB member and former prime minister of Denmark, Helle Thorning-Schmidt, are calling for . These proponents cite its funding, autonomy from Facebook, and diverse membership as reasons for its potential success in regulating the space. However, not everyone agrees with that position. For one, FOB seems powerless in for its role leading up to the insurrection. This is not to suggest that Facebook is the only social media platform grappling with finding an appropriate balance between promoting free speech and preventing harm; however, its role cannot be understated.

Critics argue that FOB’s decisions by focusing too much on corporate oversight. Instead, the focus should be placed on passing legislation that curtails Big Tech’s business models and protects users from their voraciousness.

Currently, the Canadian federal government is preparing to unveil legislation regulating social media content. The legislation to be modeled after Germany’s NetzDG law, which requires social media platforms to remove illegal content under tight deadlines or face severe fines.

warn that following Germany’s precedent could be problematic for two reasons. First, it won’t effectively deal with content that is “lawful but awful”, that is, content that is legal but is known to create real-world harm. Given the Charter of Rights and Freedoms’ broad protections for freedom of expression in Canada, it will be difficult for the government to curb the expression of harmful ideas in public spaces. Second, the legislation could set a bad example for countries that criminalize forms of expression protected under international human rights law. Laws that impose severe penalties on social media companies for failing to remove illegal content under a nation’s laws could increase the criminalization of political dissenters and minority communities. To address these concerns, scholars suggest Canada adopt a multilateral approach by working with other rights-respecting democracies to prevent the internet from “splintering into a series of national networks.”

Ultimately, until the federal government unveils the legislation and holds consultations, it is difficult to predict its effectiveness. However, online content requires regulation, whether that be from corporate entities, governments, or something in between.

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US False-Endorsement Claim

In the US, section 43(a) of the Lanham Act, the US federal trademark law, provides artists with the ability to challenge campaigns for a false impression of endorsement. In effect, false endorsement involves the in relation to any uniquely distinguishing characteristic of the plaintiff (at para 626), which is likely to confuse consumers into thinking that the celebrity is the defendant’s product or brand (at para 1110).

However, this provision’s applicability to copyrighted work was limited in , where the court was concerned that the the creator's identity and their communicative product would over-extend the Lanham Act, causing it to conflict with copyright law (at para 33). However, rather than focusing on confusion ±ąľ±˛ő-Ă -±ąľ±˛ő a celebrity’s sponsorship or approval, the case involved reverse passing off and a confusion analysis regarding the origin of tangible goods (at para 44). It will be interesting to see how courts will navigate this issue in the future.

Artists can also try challenging politicians through US laws. While their scope differs between states, they generally prevent “the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspect of one’s persona.”

Misappropriation of Personality in Canada

Under Canadian common law, false endorsement claims can be qualified as a “misappropriation of personality,” the protected interest under which is the exclusive use of an individual’s own identity, as Along with the necessary element of the commercial exploitation of an individual’s personality, went further, stating that “the tort of appropriation of personality is restricted to endorsement-type situations” (at para 14). However, it is unclear whether a politician’s use of an artist’s song during a political event would be considered commercial exploitation.

What about provincial privacy acts? Privacy has been described as Manitoba, Newfoundland and Labrador, and Saskatchewan offer a general tort for an invasion of privacy within their privacy statutes, and is a provided example of the general tort (at 3). Artists making an appropriation of personality claim in these provinces must conform to the requirements of the general tort, and in demonstrating an appropriation of personality, the use of the person’s name, likeness, or voice must have been for the defendant’s gain or advantage (at 4). This is not restricted to commercial gain, but the appropriation had to have been intentional (at 5). In BC, an appropriation of personality is a separate tort from the general tort for an invasion of privacy and does not encompass an intentionality element, but the claim is limited to acts motivated by commercial purposes, and the traits that can be appropriated are confined to the individual’s name or portrait. An appropriation of personality claim under Quebec’s Civil Code appears to exclude the need to indicate a commercial purpose. Further, intent does not appear to be a relevant concern, and the traits involved can include the individual’s name, likeness, or voice (at 15-16).

Moral Rights Infringement in Canada

Under moral rights, an deserving protection and less commercial value is placed on the relationship between the artist and their work (at para 15). Under , artists can claim there has been a moral rights infringement to the right to the integrity of their work where, to the prejudice of the artist’s honour or reputation, the work is used in association with a cause or institution. The assessment of how an artist’s honour or reputation is affected is , requiring the artist’s personal opinion, as well as public or expert opinion (at para 49).

If all else fails, a non-litigious option is to openly dispute a politician’s use of a song by putting pressure on their campaign through the power of a devoted fanbase. If the ubiquity of social media soapboxes and the transparency of public opinion have shown us anything, it is that bad publicity, ultimately, rules.

Written by Esther Kim, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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