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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After an introduction by the session’s chair Prof. , Prof. er, from McGill’s Faculty of Law, whose doctoral thesis was supervised by Prof. Vaver, dedicated her talk to the formation and early years of the National Research Council of Canada (NRCC) and its influence on present-day technology transfer. , Partner at Cassels Brock, and former professor who took over teaching Professor Vaver’s IP course at UBC, dedicated his talk to the problems of the Copyright Board of Canada (CCB) and how copyright’s development in Canada has led to this.

Origins of Technology Transfer in Canada

Nowadays, technology transfer offices (TTO) are ubiquitous among Canadian universities and primarily serve to commercialize the research of their respective institutions. As Prof. Piper explained, these offices are seen as successors to the now dissolved Canadian Patents and Development Ltd. which was created by the NRCC in 1947 as Canada’s first technology transfer office. It is interesting to examine how this culture of technology transfer first arose in Canada and how its originating tenets are still relevant to technology transfer today.

Prof. Piper explained in the early 20^th century, Canada had an innovation problem. Although there was undoubtedly innovation occurring, most Canadian inventions were being patented and commercialized in the US. Canada needed to commercialize its innovation and to do this; the NRCC was founded in 1916.

Its first president, Henry M. Tory noticed a problem that American research councils faced at the time which was that American council members would patent in their name, thereby reaping all the financial benefits of commercialization. As a result, Tory passed legislation that the rights of all discoveries, inventions, and improvements made by NRCC council members and staff were to be held by the NRCC who would commercialize them. Prof. Piper states this laid the foundation of technology transfer in Canada.

Even with their policy reform, the NRCC was still not effective at commercializing their innovations. This changed when Andrew McNaughton, a military inventor, general in World War I, and chief of staff following the war, became president in 1935. As Prof. Piper explained, the military used a systematized approach to innovations where inventions made by members would be given to an overseeing body. McNaughton applied his knowledge gained through military management and under his four years of leadership, the number of patents the NRCC held rose from 55 to 138, and the amount of money earned by patent royalties finally overtook the funds lost by licensing.

Prof. Piper notes that many of McNaughton’s practices are still followed by TTOs today. This includes practices like sending out a careful description of the invention, statement of first costs, making offers to responsible parties, conducting market research to sell the invention to a new country or investor. Furthermore, the NRCC wanted to utilize their innovation for social good. This is evidenced by the fact they offered non-exclusive licensing for their most useful patents, such as those pertaining to locomotives and plant hormones. Prof. Piper concluded that in many ways, the open innovation movement we see today was already being pursued in the 1930s.

The History of Canadian Copyright Regulation

In contrast to Prof. Piper, Mr Chisick chose to centre his talk around a problem. This problem being the failure of the CCB to fulfill its mandate of efficiently balancing the needs of copyright collectives and users. The inefficiencies of the CCB have become so great that the government launched a consultation period in August 2017 with various stakeholders including collectives and consumer groups. The received, largely identified similar problems.

Mr Chisick stated the biggest problem of the CCB is the time it takes in completing a hearing and rendering a decision. For example, the time between a collective filing for a tariff proposal and the Board’s decision on that proposal is . Meanwhile, a market may have developed in those few years in a way that is incongruent with the assigned tariffs. The process is expensive, and the decisions have become unpredictable. Innovative services that rely on copyright works are reluctant to enter the Canadian market because they don’t know the price they will have to pay for rights they rely upon. Mr Chisick noted that although many stakeholders identified similar problems, the solutions they identified varied. For this reason, it is essential to understand the history of Canadian copyright.

Mr Chisick discussed how collectives were first formed in Paris to protect the rights of a broad range of created works and how they provided an efficient and predictable way for users to license works. This idea was later passed unto Canada in the early 20^th century with the creation of the Copyright Act and founding of performing rights societies. Lastly, an agency regulating the royalties to the performing rights of music, which would later become the CCB was established. As the century continued, the CCB would suffer from overexpansion of its jurisdiction and mandate without adequate resources to serve them.

Mr Chisick concluded that solving the inefficiency of the CCB will require determining the role we’d like it to serve. Historically, this has changed. More recently in , the Federal Court of Appeal decided the CCB’s role requires the balance of protecting both licensees and users. However, given the aggregation of powerful users like Google, Amazon, Apple and reduced number of economic actors in that space, determining what degree of control the CCB should exercise in respect to these parties will have to be considered.

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

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