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.”

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.”

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.

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.”