Australia continues to lead the way in the consideration of online liability, and it remains to be seen whether Canadian courts will follow its lead, says Toronto lawyer and mediator Howard Winkler.
“Australian courts are trending towards the protection of reputation in priority to free expression, as shown in recent decisions,” says Winkler, principal and founder of Winkler Dispute Resolution.
A recent decision by the Supreme Court of New South Wales concerned a man whose treatment in custody attracted nationwide coverage, as well as commentary on the websites of various news agencies. After he was released, the man sued several large Australian media outlets, alleging they were responsible for the comments posted on their Facebook pages. The court agreed, stating, “When a defendant commercially operates an electronic bulletin board and posts material that, more probably than not, will result in defamatory material, the commercial operator is ‘promoting’ defamatory material and ratifying its presence and publication.”
Winkler tells AdvocateDaily.com he was surprised by the decision, noting “It represents a significant extension of the common law and arguably takes it to an unreasonable extreme where it starts to unduly discourage free expression.”
He explains that the court ruled that websites take on the liability of a being a primary publisher when certain conditions are met: it provides a platform for comments, facilitates the dissemination of those comments, has the ability to either censor or turn off comments, has the ability to filter comments by identifying certain key words and can anticipate defamatory comments.
“This judgment takes the principle of liability further than it’s ever been taken before, at least in a common law jurisdiction,” he says.
In 2017, the Supreme Court of South Australia set another precedent in this area when it ruled that the web site operators were liable for defamatory content on their platforms, but only after they were put on notice about it, and if they then failed to take it down.
“The ignorant should not be allowed to wreck reputations with impunity,” the 2017 judgment reads. “Once knowledge, actual or constructive, of the presence of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk … which may be made in any action brought by a primary publisher.”
“That was a fair decision, as it essentially recognized that sites such as Google cannot monitor every comment made and decide whether it should be posted or not,” Winkler says.
In contrast, he says the recent Australian decision doesn’t give publishers the protection of having time to react and take the defamatory material down before they are held responsible for it.
“In interpreting common law principles, courts always have to recognize the fine balance between freedom of speech and the protection of reputation,” Winkler says.
“The pendulum swings back and forth between those two, with Canadian courts currently trending towards the protection of expression, while the Australian courts are favouring the protection of reputation,” he says.
Winkler says this issue has not yet been tested in Canadian courts, which follow the same common law principles as Australian courts.
“When this issue does come up here, judges will have to carefully consider the Australian trend and decide whether they’re going to follow it, or not,” he says.