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AdvocateDaily.com Staff

Howard Winkler’s media roundup

December 20, 2019 by AdvocateDaily.com Staff

Toronto lawyer and mediator Howard Winkler is frequently called upon by the media as a trusted source for their news stories, particularly for his focus on defamation and privacy issues.

See the complete list below:

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Toronto lawyer and mediator Howard Winkler tells the Toronto Star he has brought a motion to dismiss a defamation case against his client, Ontario’s former PC leader, under a section of the Courts of Justice Act aimed at limiting “strategic lawsuits against public participation” or SLAPP actions.

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Toronto lawyer and mediator Howard Winkler tells QP Briefing that a threat to sue someone during an election campaign is likely “fairly empty,” given litigation is expensive and time-consuming and “any vindication that then comes with a favourable judgment, again absent actual harm, is often of little real benefit.”

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Legal action is almost guaranteed after a city councillor and a former colleague filed a court application known as a Norwich Order, which requests the names, contact information, messages and contracts between a web developer and clients who hired or directed them to create negative websites, Toronto lawyer and mediator Howard Winkler tells the London Free Press.

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Toronto lawyer and mediator Howard Winkler tells the Globe & Mail that the statements made by a high-profile investor against his client, a private equity manager, were “on their face, outrageous, false and defamatory” and “clearly indefensible.”

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In his recent column for Law Times, Toronto lawyer and mediator Howard Winkler says the end to abusive non­-disparagement clauses in employment law releases is on the horizon thanks in part to Uber’s attempt to enforce the over-reaching arbitration provision in its agreement with its drivers.

Toronto lawyer and mediator Howard Winkler tells La Presse the Liberal government’s endorsement of a contentious article in the new free trade agreement between the U.S., Mexico and Canada will give immunity to social media companies in Canadian courts even if they knowingly disseminate fake, false and defamatory statements of their members.

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By signing on to the United States-Mexico-Canada Agreement (USMCA), the Liberal government agreed to significantly alter the existing common law of defamation, Toronto lawyer and mediator Howard Winkler writes in Law Times.

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A former member of Parliament’s unsuccessful defamation case against a major B.C. newspaper underscores a recent trend by the courts to balance interests more towards freedom of expression rather than protection of a person’s reputation, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

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Toronto lawyer and mediator Howard Winkler tells Global’s 640 Torontohe’s concerned the Prime Minister’s Office (PMO) may have overstepped its authority by requesting Twitter delete what it said was a fake account impersonating Environment Minister Catherine McKenna.

Filed Under: Defamation, Privacy laws, Social Media

Howard Winkler Latest Posts in AdvocateDaily.com

October 1, 2019 by AdvocateDaily.com Staff

Filed Under: News

Subway’s defamation lawsuit aimed at stifling criticism: CBC

September 27, 2019 by AdvocateDaily.com Staff

TORONTO — A lawsuit by the world’s largest fast-food operator over a report on the content of its chicken sandwiches is an attempt to stop the CBC from covering matters of public interest, an Ontario court heard on Tuesday.

Subway’s claim for $210 million in damages over a Marketplace broadcast in February 2017 about the chain’s Canadian chicken offerings has already had a chilling effect, a lawyer for the public broadcaster said.

Gillian Kerr told Superior Court that laboratories have become leery of working on investigative pieces or are demanding full indemnity before doing so.

U.S.-based Subway IP, along with Subway Franchise Systems of Canada and Doctor’s Associates in the United States, claims the program defamed the company and hurt its bottom line.

The company argues the program — which found only 50 per cent chicken DNA in Subway’s chicken sandwiches with as much soy — was factually wrong and based on a “complete lack” of scientific evidence.

“The chicken products are, and were, one per cent soy protein,” Subway lawyer Sana Halwni told the court. “Exactly as Subway told the CBC before they ran the broadcast.”

The lawsuit, Subway says, is aimed squarely at setting the record straight, not silencing the broadcaster.

In an interview with AdvocateDaily.com, Toronto lawyer and mediator Howard Winkler says it is somewhat surprising that the parties chose to argue this matter now given that the Supreme Court of Canada (SCC) is scheduled to hear two appeals on Nov. 12, 2019, that will determine the proper interpretation of the legislation in issue.

“It is likely that Justice Edward Morgan will reserve his decision until the SCC renders its decision,” says Winkler, principal and founder of Winkler Dispute Resolution.

“If the SCC alters in any significant way the approach to the legislation taken in the cases under appeal, the parties in this case may have to file additional evidence and written argument and undertake further oral argument. It might have made more sense for this motion to be held in abeyance until after the SCC renders its judgment.”

He says the two cases before the SCC will serve to clarify the proper interpretation of legislation in issue, whose purpose is to, among other things, encourage individuals to express themselves on matters of public interest and discourage the use of litigation as a means of unduly limiting such expression.

“I am counsel to a defendant in one appeal before the Supreme Court, and we will be arguing that the Court of Appeal interpreted the legislation in a way that it fails to properly achieve the purposes of the legislation,” Winkler says.

An interesting aspect of this case is the suggestion by the CBC that the lawsuit is making laboratories, which are critical to CBC scientific investigations, reluctant to participate in their investigations, he says.

CBC wants Morgan to toss the lawsuit before trial under so-called anti-SLAPP legislation, which aims to protect free expression on matters of public interest.

“The onus is on Subway [to prove] that there are reasonable grounds to believe that the CBC’s responsible communication defence is not valid,” CBC co-counsel Christine Lonsdale told Morgan.

Subway lawyer William McDowell countered that no defence under the legislation has succeeded in cases where the “very core of the story” has been found to be false.

Lonsdale said the Subway segment aired after a thorough investigation that took months. The broadcaster asked Trent University to analyze the chicken content of the sandwiches, then had a reviewer from Guelph University look at the results.

“Those are very relevant factors in assessing the diligence of Marketplace,” Lonsdale said. “These were not less trustworthy sources or sources with an axe to grind.”

In addition, she said, it was a matter of significant public interest, which favoured the dissemination of the information. CBC, she said, was practising responsible journalism.

Marketplace asked Subway repeatedly for comment before airing the piece but the company refused an on-air interview. It did deny CBC’s findings but refused to provide the percentage of chicken or other ingredients on the basis the information was proprietary.

Instead, the company developed an internal public relations strategy and then an external strategy that denounced the findings as 100 per cent wrong, court heard.

“They decided they weren’t going to engage with the CBC,” Lonsdale said. “(But) the Subway side of the story was reflected in the program,” Lonsdale said.

The CBC lawyers said Subway has a history of aggressive litigation, including a separate lawsuit against Trent University.

Kerr also said the restaurant operator had exaggerated the impact of the broadcast on its fortunes, which she said were minimal at best.

“There’s a complicated question as to what the losses suffered from a defamation are,” Morgan interjected.

The hearing continues.

Filed Under: Defamation, News

Winkler successful in accessing disciplinary hearing record

August 29, 2019 by AdvocateDaily.com Staff

Decisions like a recent case that applied the open-court principle to a doctor’s disciplinary proceedings contribute to a better informed Canadian public, says Toronto lawyer and mediator Howard Winkler.

Winkler, principal and founder of Winkler Dispute Resolution, acted for a major Canadian magazine after it ran into difficulty during its investigation into a disgraced gynecologist, helping the publication gain access to files and exhibits filed during the doctor’s disciplinary hearing at the College of Physicians and Surgeons of Ontario (CPSO), which ultimately ended in the revocation of his licence.

“Without that access, the story that was ultimately published would not have been as fulsome in terms of this physician’s previous disciplinary record, and the full extent of his misconduct would have remained unknown,” he tells AdvocateDaily.com.

According to the magazine feature, the author began his in-depth investigation in mid-2018 after the CPSO posted a brief notice to its website announcing the doctor’s licence to practice had been stripped from him.

But when the writer contacted the regulator about viewing the case file and related exhibits, the college’s hearing division asked him to make legal submissions to back up his access request.

That’s when they called in Winkler, a longtime counsel to the magazine who says he’s normally asked to carry out pre-publication legal reviews and conduct litigation on their behalf.

Winkler’s formal request for the full disciplinary file was opposed not only by the doctor, who objected to the impact on his privacy rights but also by the CPSO itself, which expressed concern about identifying hospital staff and other witnesses who played a part in the original proceedings.

“We had a battle to gain access to those records, but ultimately, we were successful in obtaining everything we asked for, and the documents were only redacted to the extent necessary to protect the identity of the patients involved,” Winkler says.

He says the magazine’s case was built on the foundation of a landmark 2018 Superior Court judgment that effectively extended the open-court principle to the province’s administrative tribunals, including disciplinary bodies for Ontario’s self-regulating professions.

The judge in that case ruled that certain provisions of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA), which tribunals relied on to block or delay public access to their files, were unconstitutional.

“In fashioning a regime that prohibits the disclosure of ‘personal information’ unless the press can establish its justification, FIPPA has it the wrong way around,” the judge wrote in a decision that went unchallenged by the provincial government, adding that the law’s emphasis on privacy at the expense of openness “not only has a negative impact on the press but also affects other stakeholders.”

The magazine story printed by Winkler’s client eventually revealed extensive details about the once highly respected gynecologist’s checkered disciplinary history with the CPSO, and his practice of administering drugs to pregnant patients without their consent in order to induce delivery — typically at the weekend, when he was able to charge OHIP a higher rate for his services.

Filed Under: Civil litigation

Pilot’s victory classic application of anti-SLAPP law: Winkler

June 28, 2019 by AdvocateDaily.com Staff

The dismissal of an airline’s $10-million defamation claim against a former pilot is a textbook case of anti-SLAPP legislation in action, says Toronto lawyer and mediator Howard Winkler, who acted for the pilot.

As the National Post reports, the airline sued its former employee after he self-published a book that was critical of the company’s safety record.

But Ontario Superior Court Justice Shaun O’Brien threw out the case under relatively new provisions of the province’s Courts of Justice Act designed to deal with Strategic Lawsuits Against Public Participation (SLAPP), which allow for the dismissal of actions involving comments on a “matter of public interest.”

Winkler, principal and founder of Winkler Dispute Resolution, tells AdvocateDaily.com that his client was extremely relieved by the decision.

“The cost of defending the action and the potential liability would have ruined him,” he says. “When you consider the importance of the nature of his speech, the indicia of SLAPP, combined with the minimal amount of damage, I think you have a classic application of what SLAPP legislation is designed to do.”

The pilot’s book was critical of his former employer. He also gave interviews as part of a Post investigation into the safety and maintenance practices of the airline, which strongly denied all complaints, pointing to its success in passing a rigorous international safety audit.

The newspaper says it was threatened with a lawsuit following the publication of its investigation, but the airline ultimately proceeded against the pilot alone and has also announced its intention to appeal.

Despite the book’s “provocative and sensationalized” wording, O’Brien concluded that any damage done was outweighed by the public interest in the debate around an issue as serious as airline safety.

“[The defendant] spoke out on a matter of significant public importance,” the judge wrote. “He caused limited harm to [the airline] with his self-published book, but was silenced by a much more intimidating litigant.”

According to the Post, the pilot’s book sold just 247 copies online before the airline convinced the retailer to stop selling it, while the pilot himself halted his own sales once the lawsuit was launched. Those facts showed that the action had interfered with the defendant’s ability to express himself, the judge found.

“He has said he does not feel free to pursue an important conversation about the safety of regional airlines and, in particular, [the airline],” she wrote. “In other words, actual libel chill is an issue here.”

Since its passage with all-party support at Queen’s Park in November 2015, Winkler says the anti-SLAPP legislation has been well-tested in court. After a number of Superior Court motion decisions, the Court of Appeal weighed in last summer after hearing six appeals together.

He says those cases and the most recent decision should give all plaintiffs in defamation actions pause.

“At this point in time, we’ve had the benefit of a good number of decisions, and I think there is a real incentive for plaintiffs to assess, at the very earliest stage, whether the legislation will apply to their particular complaint and whether it’s worth proceeding,” Winkler says.

Still, he warns that the situation could change once the Supreme Court of Canada hears appeals in two cases later this year.

“Everyone will be waiting to see what the Supreme Court has to says about the proper application of this legislation,” says Winkler, who will appear for one of the parties at the nation’s top court at the hearing in November.

Filed Under: Civil litigation, Defamation

Everyone loses in cautionary New Brunswick defamation case

April 17, 2019 by AdvocateDaily.com Staff

A recent New Brunswick decision is a cautionary tale for all involved in defamation claims, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

The case involved a gallery owner who won $3,000 in damages and costs from an artist who badmouthed her online during a dispute over payment.

But Winkler, principal and founder of Winkler Dispute Resolution, says the gallery owner’s victory rang somewhat hollow, considering the small recovery, as well as the time and cost of bringing the action, seeking between $25,000 and $50,000 in general damages alone.

“This decision is a cautionary tale in several respects,” Winkler says. “Not only should people be careful about what they post online, but they must also be careful when deciding what to sue someone over.”

According to the court ruling in the case, the events in question date back to late 2013, when one of the artist’s pieces was sold by the gallery for $4,000. About a year after the sale, when the gallery owner told the court she was suffering from business and personal problems, the artist was still waiting for his full share. He then took to Facebook to vent his frustrations in a post, part of which accused the gallery owner of “theft.”

Separately, the artist won around $750 from the gallery owner, including costs, in a small claims action he launched over the underlying payment dispute.

According to Winkler, the defamation case came down to the artist’s use of the word “theft,” which the judge invoked in dismissing his defences of both justification and fair comment.

“Everyone is entitled to comment fairly on matters of public interest and such comments are protected against claims of defamation. That does not include a reference to someone as engaging in a criminal activity such as theft,” wrote the judge, who noted the distinction between a person who steals and someone who avoids paying debts.

Winkler, who was not involved in the matter and comments generally, says the case was a close one, and that the result could easily have gone the other way.

“The word ‘theft’ suggested an element of criminality to this judge, but in the context of the overall post, another judge or reasonable reader could easily have come to the conclusion that the meaning was not defamatory and that the use of the word ‘theft’ meant nothing more than that the gallery owner was keeping money that properly belonged to the artist,” he says. “In matters like this, the result is often a bit of a crapshoot.”

In addition, Winkler says the case demonstrates the inadequacy of the judicial system when it comes to dealing with matters of reputation.

“The impact of defamatory posts, particularly online, is immediate, but here, it was not resolved until many years later,” he says. “The passage of time was so great, that both parties had probably moved on with their lives.”

If anything, Winkler notes the court case and subsequent news coverage merely rehashed a dispute that makes neither side look good.

“For the gallery owner, this was a victory with respect to the judgment, but it’s possible it did more harm than good by reminding everyone about the fact she had broken a promise to pay an artist,” he says.

The $450 the gallery owner won in costs is also likely to pale into significance with her legal fees, even though the action proceeded under New Brunswick’s simplified procedure, says Winkler, noting that both sides were represented by counsel at trial.

“From a financial perspective, everyone lost, especially when you put it in the context of a sculpture that was valued at $4,000,” he says.

Filed Under: Defamation, Privacy laws, Social Media

Supreme Court decision not such a dark day for journalists: Winkler

December 21, 2018 by AdvocateDaily.com Staff

Free press advocates are overreacting to a Supreme Court of Canada decision that forced a journalist to hand over materials to police, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

All nine judges upheld a previous judgment ordering a Vice Media Canada reporter to turn over messages he exchanged with a Canadian citizen allegedly involved with ISIS, prompting a number of commentaries, including by the Canadian Association of Journalists (CAJ) which called it a dark day for journalists in the country.

“This ruling is a serious setback for press freedom in Canada. It creates a chill for anyone who wants to speak truth to power or expose government wrongdoing,” the CAJ said in a statement to media.

But Winkler, principal and founder of Winkler Dispute Resolution, says the sentiment reflects an “exaggeration” of the ruling’s impact.

“In my opinion, the decision represents an appropriate balancing of the various interests at stake in the matter,” Winkler says. “I don’t think it’s a dark day for press freedom for a number of reasons.”

First, he says the judges emphasized in their decision that the case arose before the passage of the new federal Journalistic Sources Protection Act, which created a new framework for search warrants and production orders involving the media, and only came into force in October 2017.

“In terms of precedential value, it’s going to be limited, given the enaction of new legislation that provides specific protection for journalistic sources,” Winkler says.

In addition, the journalist’s source in the Supreme Court case was not one the reporter had offered confidentiality. In fact, the court found the man was keen to make contact with members of the media in order to broadcast his extremist views.

“When someone speaks or provides documents to media on the record, and there is no agreement of confidentiality, there is no reasonable expectation of privacy in respect to those communications, and they may ultimately be disclosed, whether in civil litigation or as a result of a search warrant by a policing authority,” Winkler says. “If confidentiality had been at stake and the court ruled the same way, then depending on the circumstances, I could see the media being more concerned.”

The case has its roots in articles published in 2014 by the Vice Media journalist, based largely on communications he had with a Calgary man who left the country for Turkey earlier that year and later appeared in ISIS propaganda videos.

As part of its investigation into allegations the man had participated in terrorist activity and made death threats, the RCMP obtained an ex parte production order for the journalist’s notes.

Vice’s application to quash the order was dismissed by an Ontario Superior Court judge, whose decision was in turn upheld by the province’s appeal court.

Although the nine justices were united in the result, they split 5-4, disagreeing on the extent of tinkering required to the existing test for issuing search warrants and production orders against journalists.

Writing for the majority, Supreme Court Justice Michael Moldaver dismissed the appeal, finding “the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news.”

Moldaver endorsed the framework for granting such orders laid out in a landmark 1991 case, also decided by the Supreme Court, though he added that it should be refined, reorganizing the factors to be considered, and allowing for an assessment of the effect of prior partial publication on a case-by-case basis.

In addition, the majority decision modified the standard for reviews of ex parte orders, entitling media outlets to a de novo review if they can introduce information not heard by the authorizing judge.

Winkler says journalists should be more concerned about an upcoming case slated to be heard by the top court in the new year. That involves a Radio-Canada reporter appealing an order that she identify the sources for her story on corruption in Quebec.

“I think the issues in that decision will be much more illuminating and impactful,” he says.

Filed Under: Defamation, Privacy laws, Social Media

The trouble with USMCA’s defamation provisions

November 19, 2018 by AdvocateDaily.com Staff

By signing on to the United States-Mexico-Canada Agreement (USMCA), the Liberal government agreed to significantly alter the existing common law of defamation, Toronto lawyer and mediator Howard Winkler writes in Law Times.

The winners are companies like Google and Facebook, which facilitate online communication, says Winkler, principal and founder of Winkler Dispute Resolution.

“The loser is the common law protection of reputation and victims of anonymous false and defamatory online statements, such as untraceable comments on rate-my-professional types of sites or Google business reviews,” he writes. “This should be of particular concern to all Ontario lawyers whose reputations are so important and so easily destroyed, as well as to their clients, whose livelihood often depends on their online presence.”

Winkler says the ability to protect one’s reputation is critical, citing a landmark Supreme Court of Canada case, which stated, “to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws.”

For years, Canadian courts and provincial lawmakers have struggled with the sometimes competing interests between the constitutional right to freedom of expression and the right to protect one’s reputation, he writes.

“This fine balance will be fundamentally altered due to a clause in the USMCA,” Winkler says. “In plain language, this provision will provide absolute immunity to content providers no matter what the nature of the content is that they facilitate.”

“No Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information,” says paragraph two of clause 19.17 of the USMCA.

While some claim this as a victory for freedom of expression, Winkler argues it’s more like a “nail in the coffin” of people’s rights to safeguard their reputation from the explosion of anonymous, false and defamatory content that appears online and served up by search engines.

“One of the greatest challenges to business and individuals today is dealing with the proliferation of fake, false and defamatory content on the internet,” he writes. “Anyone with access to a public computer terminal can, with the push of a keystroke, anonymously, immediately and permanently damage the hard-earned reputation of a business or individual.”

Winkler says it’s not uncommon for anonymous individuals to post fake, false or defamatory reviews of a business with the help of a public computer in a library or from a jurisdiction outside the reach of Canadian courts, including the U.S.

“In the U.S., under the provisions of the Communications Decency Act, ‘no provider … of an interactive computer service shall be treated as the publisher … of any information provided by another information content provider,’” he writes. “In other words, the law in the U.S. provides absolute immunity to providers such as Google, Facebook and Twitter even when they knowingly provide a vehicle for the publication of demonstrably anonymous, false and defamatory content.”

By contrast, Winkler says other common law countries like Australia continue to lead the way when it comes to online defamation and the liability of secondary publishers.

“In the [case], the Supreme Court of South Australia ruled that once on notice, Google must either remove the material or face liability as a secondary publisher,” he writes.

In the matter, the internet giant refused to remove search results that suggested a doctor was a stalker, which the court found were defamatory, Winkler says.

“The court awarded general damages against Google in the amount of AUD$115,000 (approximately CDN$106,000) for loss of reputation and hurt feelings. The award was upheld on appeal,” he adds.

“The ignorant should not be allowed to wreck reputations with impunity. Once knowledge … of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk of the ultimate findings as to their meaning … ” said the ruling.

The common law approach of imposing some responsibility on service providers to exercise control over the content they facilitate make sense and without the USMCA, there’s no reason to think Ontario courts wouldn’t follow the same principles, Winkler writes.

“Finally, the law of defamation is a provincial power. While the enactment of paragraph 2 of clause 19.17 of the USMCA may be within federal powers as it relates to intellectual property, it is arguable that only the provinces can enact legislation affecting the law of defamation,” he says.

Winkler advises provincial legislators and Ontario courts to pay close attention to the USMCA provision and ensure they uphold protection for reputational damage.

“The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump,” he writes. “While Trudeau may have intentionally or unwittingly given Google an early holiday gift, one can only hope that, with the passage of time, it amounts to nothing more than a lump of coal.”

Filed Under: Defamation, Social Media

Failed U.K. privacy breach action would fare better in Canada

October 29, 2018 by AdvocateDaily.com Staff

Canadian consumers have a better set of legal tools to hold companies responsible for privacy breaches than their U.K. counterparts, judging by a recent ruling involving an internet search engine, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

The CBC recently reported on the refusal of the High Court of England and Wales to certify a class action against the search engine giant over claims the company illegally accessed iPhone users’ internet history data.

Despite describing the company’s actions in bypassing privacy settings on smartphone users’ internet browsers as “wrongful, and a breach of duty” the British judge ruled the action could not proceed because the claimants had failed to prove any damages.

Winkler, principal and founder of Winkler Dispute Resolution, says members of the consumer coalition who brought the action may have had a better chance of success in Canadian courts.

“The situation in Ontario is much more favourable to plaintiffs under similar circumstances,” he says. “Here, there are avenues both in statute and the common law by which claimants can pursue remedies for privacy breaches.”

In fact, Winkler explains there are three main routes claimants could have taken in Canadian courts to hold search engines or other companies responsible for breaches, though he adds that nobody should expect a huge windfall.

“The damages aren’t considerable, so one has to think about whether they are worth pursuing,” Winkler says. “While there is some public interest in holding those responsible for breaches accountable, it’s possible that the only real winners are the lawyers.”

Class Action

“There is a growing body of class-action lawsuits in Canada for breach of privacy, with at least six settlements of such cases,” Winkler says.

Typically, he says the settlements approved by the courts provide for a nominal amount to individual class members for wasted time and inconvenience, plus a further capped pool of money to fund claimants who can prove actual damages as a result of the breach.

“On the one hand, it’s not an avenue that’s likely to generate much money, but it does provide a mechanism whereby the wrongdoer can be held to account in court for the breach of privacy, while plaintiffs receive at least some compensation,” Winkler says.

PIPEDA

When individuals complain to the Office of the Privacy Commissioner of Canada (IPC) about a potential breach of Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), the IPC will render a report on the incident.

Regardless of the IPC’s decision, Winkler says the law allows for complainants to seek damages related to the alleged privacy breach in Federal Court for “humiliation.”

“The court doesn’t require proof of actual damages to make an award,” he says. “It’s more in the nature of symbolic or moral damages, which are awarded in part for deterrence against the wrongdoer.”

Winkler says damages awarded under PIPEDA are typically in the range of $2,500 to $5,000 but have gone as high as $20,000 in one extreme case where the court found the company’s behaviour “reprehensible.”

Tort action

Ever since a landmark 2012 Court of Appeal decision, Ontarians have been able to sue under what is commonly known as a breach of privacy tort.

That decision, which recognized the existence of the tort of “intrusion upon seclusion” for the first time, concerned a bank employee who repeatedly accessed the account records of a colleague after becoming romantically involved with the woman’s former spouse.

“Damages in Ontario have gone as high as $20,000, and in exceptional circumstances, they could go much higher, such as where the conduct is egregious and relates to the disclosure of sexual content,” Winkler says.

Filed Under: Privacy laws

Australian courts lead the way in fighting online defamation: Winkler

October 3, 2018 by AdvocateDaily.com Staff

Australian courts continue to lead the way when it comes to online defamation and the liability of secondary publishers, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

In a recent decision, the District Court of South Australia held the author of a defamatory Facebook posting liable for subsequent slanderous comments on the post by other social media users.

“At first blush, it seems extreme, but what the decision really does is it recognizes the importance of reputation and imposes a responsibility on those using social media to take care with what they write,” says Winkler, principal and founder of Winkler Dispute Resolution.

“This will have a far-reaching impact,” he adds, noting that its significance extends beyond Australia’s borders because the country — like Canada — is a common-law jurisdiction.

In addition, Winkler says it’s just the latest in a series of Antipodean judgments on similar issues.

For example, a previous decision by the Supreme Court of South Australia affirmed Google’s liability as a secondary publisher after it was notified of defamatory material in search results and failed to remove them.

Another case saw the Australian High Court rule in favour of a man who alleged Google should be held responsible as a publisher due to search results that suggested he had criminal ties.

“This new decision follows the theme of previous rulings, which suggest that with the facilitation of communication comes responsibility,” Winkler explains. “That applies equally to service providers such as Google or Facebook, and to ordinary individuals who provide a medium for others to air their views on their personal pages.”

The new case arose out of a development dispute between a pop-up farmers’ market operator and the owner of two local fruit and vegetable shops. According to the decision, the market owner took to Facebook following the shop owner’s objection to its relocation.

In addition to finding the market owner’s original posting defamatory, the court ruled that a number of the 4,500 comments underneath it were also libellous. Although the comments were written by others, the court found the defendant liable as a secondary publisher by creating the opportunity for them to be made.

By allowing comments, the court found the defendant assumed responsibility to monitor them and “remove those which were inappropriate,” despite the defendant’s arguments that it was impractical for him to control commenters or monitor such a large volume of material.

Describing the comments under the post as little more than “vulgar abuse,” the court ruled they “emphasised and adopted the defamatory imputations carried by” the original post, and awarded the plaintiff AUS$100,000 in damages.

“What the court is saying is that under those circumstances, you have a positive duty to review the content of comments and remove those that are objectionable,” Winkler says. “If you don’t and they are defamatory, then you re going to be held liable as a secondary publisher.

He says comparisons to more traditional means of publishing can help people understand how the court came to its decision.

“I liken it to the letters page of a newspaper. I don’t think there would be much dispute if a publisher was held jointly and severally liable with the author if it printed a defamatory note from a reader in response to an article that was also found to be defamatory,” Winkler says. “This is an extension of that same idea into the world of online and social media.”

Taken together, he says the various Australian decisions could see online service providers held liable for various types of defamatory internet postings, including business reviews.

“At some point, legislators or service providers, through public pressure, are going to have to accept that with the provision of communication comes a degree of responsibility,” he says. “Something will have to change if other jurisdictions follow the lead of the Australian courts.”

Filed Under: Defamation

Privacy commissioner misses mark on de-indexing

August 23, 2018 by AdvocateDaily.com Staff

Canada’s privacy commissioner oversimplifies the situation to suggest that “de-indexing” online links to potentially defamatory or erroneous information is possible in Canada under existing laws, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

In a recently released draft policy position, Privacy Commissioner of Canada Daniel Therrien said provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA), could be combined to force companies such as Google to remove links from search results if they include inaccurate information about an individual.

Therrien also called on the federal government to study the issue further and strengthen the tools for Canadians to manage their reputations online.

But Winkler, principal and founder of Winkler Dispute Resolution, says the draft policy oversimplifies the issue.

“The privacy commissioner’s view that existing legislation allows de-indexing misses the mark, in my opinion,” he says. “If the government, as a matter of policy, is unhappy with the way search companies operate, they will have to be the subject of further legislation.”

According to Therrien’s draft policy, PIPEDA currently requires companies to use accurate information, while providing for the ability of individuals to challenge any falsehoods. He says the two provisions can be combined and interpreted as a right for individuals to ask for information about themselves that is inaccurate, incomplete or out of date to be de-indexed.

“Such challenges should be evaluated on a case-by-case basis, and decisions to remove links should take into account the right to freedom of expression and the public’s interest in the information remaining accessible,” the policy reads. “If an individual is able to successfully challenge the search result based on the above, it should be de-indexed. However, lowering the ranking of a result or flagging a link or content as inaccurate or incomplete could be sufficient alternatives in some cases.”

But Winkler questions whether the law even applies to the activities of search engines such as Google in these instances since PIPEDA is only engaged when an entity collects, uses or discloses an individual’s personal information.

“Google is just linking to the content of others,” he says. “The more relevant issue is not Google’s responsibility, but people’s rights to force website owners to correct any false information.”

Winkler says the report also fails to account for the intricacies of defamation law when focusing on the activities of search engines. In a landmark 2011 judgment, the Supreme Court of Canada ruled that hyperlinking alone to defamatory material does not constitute publication of the content for the purposes of libel law.

“The mere provision of a link does not create liability. The privacy commissioner fails in his draft report to distinguish between the role of publisher and conduit,” Winkler explains. “In some respects, search engines are acting as a mere conduit by indexing and providing links to sites, and I don’t see PIPEDA applying in those circumstances.”

Still, Winkler says search engines may cross the publication threshold and find themselves exposed to liability if the snippets they pull from content to appear in searches contain defamatory material, especially if they have received a complaint from the subject.

“But the law is still untested in this area as to whether and when a search engine becomes a co-publisher,” Winkler says.

In addition, the privacy commissioner’s report fails to adequately distinguish between accurate and false information, he says, noting that defamation law only comes into play when a publication contains something that is untrue.

“If the linked content and Google’s snippet both contain accurate information, I don’t see how PIPEDA could be used to restrict that in any way,” Winkler says.

The law also provides defences for expressions of opinion made in good faith, he adds.

“Much of the content that people are concerned about is not necessarily to do with the accuracy of information, but rather they’re unhappy with opinions that are expressed by others. PIPEDA doesn’t apply at all to restrict expressions of opinions,” Winkler says.

He says PIPEDA contains a number of exceptions concerning personal information used or disclosed for journalistic purposes

“To the extent that one can consider the linked content being the result of a journalistic endeavour, it doesn’t come under the jurisdiction of the Act, so concerns about links to historic news articles are not going to be addressed either by the current legislation or by the privacy commissioner’s interpretation,” he says.

Another exception to the Act applies to information that is “publicly available.”

“You might argue that all information on the internet is publicly available, so for search engines to link to it can cause no legislative foul,” Winkler says.

Filed Under: Social Media

Did the PMO overstep by asking Twitter to delete parody account?

July 23, 2018 by AdvocateDaily.com Staff

Toronto lawyer and mediator Howard Winkler tells Global’s 640 Toronto he’s concerned the Prime Minister’s Office (PMO) may have overstepped its authority by requesting Twitter delete what it said was a fake account impersonating Environment Minister Catherine McKenna.

At the heart of the matter was whether the account was a parody or an impersonation, but either way, the optics don’t look good, says Winkler, principal and founder of Winkler Dispute Resolution.

“I’m always concerned when the government becomes involved in attempting to persuade parties they have influence over — through their legislative power — to act in a way that’s politically beneficial to the government,” he says. “I would think that the government likely should have a hands-off policy with respect to trying to influence the content on social media.”

While Twitter does make provisions for complaints of impersonation, Winkler questions whether the PMO played “too heavy a hand,” given its power to adversely affect social media companies through regulation, pointing to a similar threat made by the prime minister last November.

The real question is whether such parody accounts are misleading, he says.

“If these sites are clearly understood by people to be parodies then to try and restrict their publication really is an attempt to restrict freedom of expression, and that’s inappropriate,” Winkler says, adding that neither the government nor Twitter itself is the best arbiter in this situation.

The third option for the PMO would have been to recognize the broad protection of freedom of expression and seldom interfere with what might be interpreted as parody rather than impersonation, Winkler says.

“Generally politicians accept that they’re fair game for critical comment, parody and whatnot. Historically, politicians have been reluctant to restrain or be seen as attempting to restrain freedom of expression,” he says.

Winkler says there’s a delicate balance between free speech and the protection of the integrity of the democratic system, both of which are important principles.

“When we get into the situation of a general election, the key is not to restrict opinion or comment, but to ensure that it’s clear who is … expressing the opinion so people can judge for themselves the credibility of it and whether they wish to rely on it,” he says.

Before the advent of social media, people stood in the public square to express their political views or criticisms of politicians without restraint, but today it’s channelled through operators such as Facebook, Twitter and Google, Winkler says.

“It creates a problem because we have private businesses that are motivated for profit essentially being the filter and the judge of what speech is going to be permitted or not permitted,” he says.

Winkler says he hopes the incident prompts further public discussion.

“It is a tough call as to whether this is an impersonation versus parody, but given the universal access to Twitter, it’s open for the individual who is arguably being impersonated to respond on the Twitter account and say, ‘hey this isn’t my account, this is a parody account.’”

Filed Under: Social Media

Vital to pick right forum for multi-jurisdictional defamation cases

July 13, 2018 by AdvocateDaily.com Staff

A recent Supreme Court of Canada decision in a case involving an alleged multi-jurisdictional internet defamation reinforces the fact that for Ontario to be regarded as the appropriate forum, the statement of claim must sufficiently focus on the plaintiff’s Canadian reputation and damage to it in Ontario, Toronto lawyer and mediator Howard Winkler and lawyer Eryn Pond write in the Toronto Law Journal.

In the matter, a newspaper that publishes in print in Israel and online worldwide appealed the lower court decisions that allowed a Canadian resident and business owner to sue the paper for libel in Ontario, the article says.

As Winkler, principal and founder of Winkler Dispute Resolution, and Pond, a lawyer with the firm, explain, while almost all judges agreed that Ontario courts had jurisdiction over the proceeding, the majority allowed the Israeli defendant’s appeal, finding that Israel was clearly the more appropriate forum.

There were four separate majority opinions with lead majority reasons delivered by Justice Suzanne Côté — backed by Justices Russell Brown and Malcolm Rowe — and the remaining majority opinions delivered separately by each of Justices Rosalie Abella and Andromache Karakatsanis and now Chief Justice Richard Wagner, Winkler and Pond write, adding former Chief Justice Beverley McLachlin wrote the dissenting reasons, backed by Justices Michael Moldaver and Clement Gascon.

Côté’s reasons suggest that a plaintiff’s failure to sufficiently plead and specify the existence of a substantial reputation in Ontario and focus on harm to that reputation may impede a plaintiff’s success on a jurisdiction motion, they write.

“Had [the Canadian] narrowed his statement of claim in a manner that focused on his Ontario business interests and his Ontario reputation, and had he specifically undertook in his statement of claim not to commence similar proceedings in other jurisdictions, the pendulum may have swung in his favour,” Winkler and Pond say.

In his reasons, Côté stressed the importance of defining the scope of the action in the jurisdiction simpliciter and forum non conveniens analyses, they write.

“In what would constitute a severe blow to [the plaintiff’s] position, Justice Côté found that his amended statement of claim (amended claim) ‘was never limited to libellous statements pertaining to his Canadian business or damage to his Canadian reputation,’” Winkler and Pond write.

The article says that in relation to the amended claim, Côté, in particular, commented:

  1. While it states that the plaintiff is a “business owner and operator,” the amended claim only specifically mentions his business in Israel
  2. The natural and ordinary meaning of the article in the amended claim fails to identify any connection to his Canadian business
  3. The list of “alleged factual errors and fabrications in the article” in the amended claim “does not identify any such errors or fabrications relating to [the plaintiff’s] Canadian business practices, but it does specifically identify statements pertaining to his management of [his company in Tel Aviv]…”
  4. The amended claim “makes no mention of the article’s claim that [the plaintiff’s] management model was imported directly from his main business interest — a partnership with Wal-Mart to operate shopping centres in Canada” even though this is the passage that is said to provide the connection between the allegedly libellous statements and [the plaintiff’s] Canadian business reputation”
  5. The amended claim, while stating that damage to the plaintiff’s reputation will continue to be suffered in Israel, Canada, and the United States, it never singles out Canada as “the forum where reputational harm has been suffered for the purposes of this action.”

Winkler and Pond say that Abella also noted that five out of six of the defamatory statements “concern “[the businessman’s] conduct and reputation in Israel, not Canada.”

“This observation swayed Justice Abella in finding that the place of most substantial harm to [the plaintiff’s] reputation is Israel and, accordingly, Israeli law should apply,” they write.

Although the plaintiff acted to restrict his damages to only those suffered in Canada, Côté found that it could not act to limit the scope of his claim, Winkler and Pond write.

“Justice Côté also noted that [the plaintiff’s] undertaking did not ‘preclude a future action from being commenced in Israel to recover damages there’ and a possible future action in Israel detracts from an important consideration at the forum non conveniens analysis: The avoidance of a multiplicity of legal proceedings and of conflicting decisions,” they say.

Côté found that the undertaking provided by the plaintiff in this matter was materially different than the one considered in another multi-jurisdictional internet defamation case, Winkler and Pond say.

“In that case, the plaintiff … undertook ‘not to bring any libel action in any other jurisdiction’ and ‘limited his claim to damages to his reputation in Ontario.’ Unlike [with the Canadian businessman, the plaintiff in that case], while initially claiming damages to his worldwide reputation, later amended his claim, restricting it to damage to his Ontario reputation,” they write.

McLachlin, in dissent, disagreed with Côté on the undertaking issue, noting that, “subsequent representations and undertakings that limit the scope of the plaintiff’s action are relevant to the overall determination,” the article says.

“She also found that [the plaintiff’s] undertaking ensures that there will be no conflicting decisions and that there is no risk of a multiplicity of proceedings since [he] took the position before the court that ‘it would be an abuse of process for him to sue in another jurisdiction,’” Winkler and Pond write.

“Critical of Justice Côté’s overly formalistic approach, Chief Justice McLachlin found that Justice Côté’s parsing of each line of the claim in ‘an effort to show that his concern about his business reputation in Canada is simply an afterthought’ ignores those parts of the amended claim that connect [the plaintiff] and the article with Ontario and discounts the undertaking provided by [him] to limit his claim to his Canadian reputation,” they say.

Côté’s refusal to allow the plaintiff’s undertaking to narrow the scope of his pleading had a significant impact on her Honour’s approach to the fairness factor in the forum non conveniens analysis, the article says.

Côté found that the motion judge erred by failing to consider the plaintiff’s “significant reputation in Israel” as his claim was never limited to damages sustained to “his reputation in Ontario or to statements pertaining to his business in Ontario,” Winkler and Pond write.

“Indeed, Justice Côté refers back to the amended claim, which confirms that [the plaintiff] ‘saw himself as enjoying a significant reputation in Israel.’ Referring back to the amended claim, Justice Côté found that [the plaintiff] ‘would suffer no significant unfairness by having to bring a libel claim in Israel for comments that were written and researched in Israel and that pertain primarily to his reputation and business in that jurisdiction,’” they write.

McLachlin disagreed, finding that fairness “strongly supports allowing [the plaintiff] to vindicate his reputation in the jurisdiction where he maintains his reputation, and where the sting of the article was felt by him” and his “reputation in Israel is not material to the analysis,” the article says.

Winkler and Pond say it’s important to note, as McLachlin did, that this was not a forum-shopping case and the plaintiff’s action was not an abuse of process. The man, a long-time resident of Ontario with business interest there, brought a legitimate claim and it was reasonably foreseeable that the newspaper would have to answer the claim in Ontario when it decided to publish the alleged defamatory statements, they point out.

“Given the plurality of reasons in this case, it is unlikely to be the last word on multi-jurisdictional internet defamation issues,” they write. “The clear lesson from this decision is that the statement of claim must focus on a plaintiff’s Canadian reputation and the damage to it in Canada. This focused approach will serve to ensure that a plaintiff is able to vindicate his or her reputation in the chosen forum.”

Filed Under: Defamation

Aussie’s successful bid to sue Google may inform Canadian courts

June 27, 2018 by AdvocateDaily.com Staff

The case of an Australian man who recently won his battle to sue Google puts the search engine giant on notice it may be liable for any defamatory content it facilitates, Toronto lawyer and mediator Howard Winkler tells Newstalk 610.

In a matter that dates back to 2004, the Australian High Court unanimously ruled in favour of the man, supporting his allegation that a Google search of his name might suggest he was associated with the Melbourne criminal underworld, reports CBS.

Winkler, principal and founder of Winkler Dispute Resolution, says doing a search of a new friend or potential business partner has become a routine way of researching people in modern society.

“If you’re applying for a job it’s not uncommon for employers as part of their background check to search Google,” he says. “If you’re trying to do business with someone, it’s not uncommon before you embark on that relationship to Google the person’s name to see what kind of reputation they have.”

The Australian courts, by virtue of their experience in this case and similar others, are far ahead of Canada in dealing with cases of defamation, and will be instructive for courts in this country as more cases arise, Winkler says.

“Australia, like Canada, is a common law jurisdiction so their laws of defamation and the traditional principles they rely on are the same as the common law principles that we rely on in Canada,” he says. “Courts in Ontario, when they’re dealing with novel issues, often have recourse to decisions that have been made in other common law jurisdictions to assist them in developing the law in Canada.”

The Australian courts have indicated that under certain circumstances Google will be considered a publisher, and if they are given notice of defamatory content and refuse to take the material down, they become a co-publisher and will be responsible for any damages that are done by the false and defamatory material they make available, Winkler says.

“With Google and Facebook, the issues we’re confronting is these service and content providers have tremendous power,” he says. “They’re just not transmitting other people’s information. They are actually compiling data and…determining what the search results will be.”

In Australia, Winkler says Google tried to excuse its conduct by saying their algorithms are very complicated and that they can’t be expected to monitor and supervise all of the content made available.

“But the court said, ‘It’s your business model, it’s your algorithm and so don’t complain to us that you don’t — through the deficiencies in your own business model — have the ability to control defamatory content you’re making available,’” he says.

One of the historical challenges facing courts is that under normal circumstances, Canadian judgments can only be enforced within this country, but that’s beginning to change, Winkler says.

“What the court has started to do is make these worldwide orders,” he says. “In one case in Canada with respect to an intellectual property issue, the court issued a worldwide injunction against Google. However, there then exists this struggle between the Canadian court and foreign courts related to enforcement.

“Google then went in the U.S. for an order to declare that that injunction was unenforceable, (arguing that) under U.S. law the result would have been different,” he says. “The U.S. court granted that injunction and refused to enforce that Canadian judgment.”

An issue that comes up frequently in Winkler’s practice is businesses upset with negative reviews appearing in search results.

“If you’re a Canadian and you’re upset with something Google has done — and this comes up all the time with respect to business reviews — Google Canada takes the position they don’t host the servers and they tell you that you have to go to California, essentially putting up roadblocks,” he says, adding in some of his cases, he’s provided a copy of the Canadian order to Google in the U.S. and they removed the offending material.

Winkler says he expects that in the wake of the Australian ruling, Google will have to face the reality that in common law jurisdictions, absent legislative immunity, they will become liable for defamatory content they encourage and facilitate.

“With the power they have to affect someone’s reputation in the way they do comes a certain degree of responsibility they should impose on themselves,” he says.

Filed Under: Defamation

Vindication for ‘Scud Stud’ comes at a cost: Winkler

June 14, 2018 by AdvocateDaily.com Staff

While a former war correspondent achieved vindication in his defamation suit against one of Canada’s biggest media companies, it came at a great expense, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

The legal publication reports the Alberta Court of Appeal increased the costs awarded to journalist Arthur Kent in his successful defamation case against Postmedia, “saying the trial judge erred when she said allegations of intentional concealment of documents were unproven.”

Kent, who gained notoriety in 1991 as the ‘Scud Stud’ while reporting on the first Persian Gulf War, ran as a Progressive Conservative candidate in the Alberta legislature in 2008.

During his bid for office, a reporter wrote a critical article about Kent. At trial, Justice Jo’Ann Strekaf noted, “the overall tenor of the article is that Arthur Kent is a politically naïve arrogant has-been journalist with a huge ego whose election campaign is in disarray and who is doomed to become an ineffective MLA if elected.”

Strekaf found the article to be defamatory and awarded Kent damages totalling $200,000 and costs of $250,000, despite his claim for $1.2 million in costs.

“But she rejected as unproven Kent’s allegations the defendants were fraudulently concealing records and giving false evidence surrounding a number of emails between Kent and his campaign’s legal counsel, despite saying they were ‘highly relevant and material to the litigation,’” The Lawyer’s Daily article states.

However, Justice Peter Martin, who wrote the unanimous decision of the appeal court, rejected that finding and adjusted the costs awarded to $450,000.

“The failure of the respondents to disclose these highly relevant emails … represented a fundamental breach of the respondents’ obligations,” the decision states. “It is no excuse to say that this was done to protect a journalist’s source or at the request of the client. [We] respectfully conclude that the trial judge did err, and that the evidence and factual findings she made regarding these allegations established that both had been proven.”

But Winkler, principal and founder of Winkler Dispute Resolution, says he thought Kent would likely have been disappointed with the ultimate result of the litigation.

“And he recovered $200,000 in damages, which in my view seems low in light of what the Court of Appeal described as a devastating attack on him,” he says. “There were certain findings that the Court of Appeal describes as serious misconduct by the defendants, which the court found were substantiated by the evidence, and in my view, the general damage award is very low.”

Winkler says the challenge in a libel trial, unlike a normal commercial case where damages can be quantified, is that the notion of general damages is an esoteric concept.

“It’s really a number the judge or the jury picks out of the air based on their overall impression of the case,” he says, adding the appeal court suggested that one factor in determining the appropriate cost award was deterrence.

“So when it comes to the cost award, the real question is do the costs of $450,000 represent a deterrent from engaging in the same kind of serious misconduct which the Court of Appeal found to exist?

“One might say to provide that kind of cost award in relation to the overall costs did not achieve the goal of providing a deterrent [to the writer of the defamatory article], the National Post and others who might consider similar conduct in relation to their reporting.”

Filed Under: Defamation

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Certified Specialist in Civil Litigation by the Law Society of Ontario

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