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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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 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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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 91��ɫ.

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