Howard Winkler and Eryn Pond

Google is the most-used search engine in the world. As part of its searching services, it provides details about businesses searched, and it gives users a means to read and post business reviews.

Notwithstanding Google’s content policies, some reviewers use fake names and/or post reviews that are false and defamatory. Sometimes these reviews are posted by competitors or disgruntled employees. For some businesses, these false reviews can seriously affect their hard-earned reputations and bottom line.

Taking the position that it merely hosts third-party content and is not a creator or moderator of that content, Google may be unco-operative in removing false and defamatory reviews. Businesses might discover that Google will only remove reviews where a court has found that material is illegal and/or should be removed. This is of little use to small- and medium-sized businesses that can’t afford the cost of litigation.

However, there may be some light at the end of the tunnel. The Supreme Court of South Australia (Full Court) recently affirmed Google’s liability as a secondary publisher after notification of defamatory Google search snippets and hyperlinks. If this decision is widely adopted, the company will have to reconsider its “hands-off” approach.

What, then, are some effective strategies for businesses faced with false and defamatory Google reviews?

First, some non-litigious suggestions

If the reviewer’s contact information is known, it may be worthwhile to send a carefully drafted letter to the reviewer that outlines the words complained of, requests the immediate removal of the post and advises that legal proceedings could be commenced against the reviewer. The reviewer might volunteer to remove the false and defamatory review and the matter may end.

Google provides an online process where it can be alerted by businesses to false and defamatory reviews. When reporting to Google, a business or its legal counsel should demand that the review be removed immediately, and put Google on formal notice of the false and defamatory statements. In order to preserve a right to sue Google, businesses and their counsel must be careful to comply with any statutory obligations to provide a Notice of Libel. Regrettably, dealing with Google in this way has mixed results, but it is worth a try as a first measure.

By taking ownership of the Google business listing, a business may, among other things, respond directly to any false and defamatory reviews. This approach could allow other readers to gauge the authenticity of the false and defamatory reviews and encourage them to disregard it altogether.

But be careful here. By taking ownership of the business listing, businesses must accept Google’s terms of use, which include choice of forum and law provisions, limitations of liability and indemnity provisions. These provisions, however, may not apply to causes of action that arise outside of the specific terms-of-use provisions (see Equustek Solutions Inc. v. Jack 2014 BCSC 1063 (aff’d 2015 BCCA 265; aff’d 2017 SCC 34).

Given the prevalence of online business reviews and the vast number of people conducting online searches using Google, it is critical that businesses encourage satisfied customers/clients to post positive reviews. The posting of positive Google reviews might altogether diminish the impact of false and defamatory reviews and also highlight their inauthenticity. At the very least, it provides readers with a more balanced picture.

Take the litigation route

If non-litigious routes fail, another option is to sue the reviewer. This involves many steps and will be expensive. If a business is successful in obtaining an Ontario judgment against a reviewer, Google will likely remove the review.

In cases where the identity of the Google reviewer is unknown, legal counsel may bring a pre-action application for a Norwich Order compelling Google to disclose the reviewer’s name, e-mail address, Internet protocol address and any other identifying information so that a defamation claim may be pursued (see York University v. Bell Canada Enterprises [2009] O.J. No. 3689).

Once the identity of the poster is disclosed, legal counsel may succeed in persuading the reviewer to remove the reviews and settle the matter with minimal further cost. If that fails, a claim can be pursued against the reviewer.

Suing Google as a co-publisher

Only deliberate acts can lead to liability as a publisher. Google will in the first instance likely be shielded from liability, since it plays only a passive instrumental role in facilitating its business review content (see Crookes v. Newton, 2011 SCC 47 and Niemela v. Malamas 2015 BCSC 1024).

This, however, will not likely be the case where Google has notice of the false and defamatory statements and fails to remove them within a reasonable time. The Supreme Court of South Australia, in Google Inc. v. Duffy [2017] SASCFC 130, recently held that once Google received notification of false and defamatory statements, it was liable as a secondary publisher.

It is notable that the court in Duffy found that Google’s facilitation of the defamatory webpages is both substantial and proximate: “Google has republished the Ripoff Reports by abstracting sufficient material to inform the searcher of its contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to it though the hyperlink.” There can be no doubt that Google, as the “host” — and through the placement of business review content in a prominent screen position on every Google business search result — facilitates the publication of Google business review content in a substantial and proximate manner.

There is a strong argument, on established principles, that Google will be liable as a publisher of its business reviews where it has received notification of the false and defamatory reviews and has failed to remove them within a reasonable amount of time (see Pritchard v. Van Nes 2016 BCSC 686). This differs greatly from the situation in the United States, where Internet service providers are immune from liability even after notice of defamatory content (see Communications Decency Act, 47 U.S.C., s. 230, and Zeran v. America Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997)).

If Canadian courts follow Australia’s lead, Google, as a co-publisher after notification, will either have to defend the review as would the original poster, or remove the review in order to avoid the cost and exposure of litigation. The hope is that with time, Google will become more responsive and proactive with the voluntary removal of demonstrably fake, false and defamatory business reviews.

Howard Winkler, the founder of Winkler Dispute Resolution, is a senior Toronto mediator and litigator with more than 33 years of problem-solving experience. He specializes in defamation law and commercial litigation. Eryn Pond is a lawyer at the firm who specializes in defamation law and has a particular focus on social justice and education law.

Published in The Lawyer’s Daily on October 19, 2017

By Howard Winkler

The law of Defamation continues to be one of the most technical areas of law, with special limitation periods, notice pre-conditions to the commencement of proceedings, special rules of pleading and evidence, and reverse onuses of proof. It is an area of law that requires great expertise and more importantly experience.   A lawyer who provides advice and proceeds with a claim based solely on a review of the relevant legislation may do a great disservice to his or her client.

Absent the existence of special damages, defamation actions should rarely be brought for monetary reasons alone.  It is an unfortunate reality for plaintiffs with legitimate claims that the unreimbursed costs of the litigation may well exceed both the damages and a partial indemnity costs award.  After a careful consideration of the monetary pitfalls of proceeding with an action, experienced lawyers will often advise clients to proceed only where there is a compelling need to prevent further reputational harm or achieve judicial vindication of a harmed reputation.

An effective strategy to redress a perceived attack on reputation requires more than a legal analysis: It requires a risk/benefit analysis that extends beyond the consideration of only the prospects of success or the financial risks. A client’s decision to proceed with an action for defamation is difficult and comes with often unanticipated risks: An ill-conceived defamation action may, in fact, risk causing more harm to the client. This is particularly the case where a client may face further negative media exposure through the reporting of court proceedings.  In this scenario, the decision to proceed with a claim may very well result in the self-infliction of new harm to the client’s reputation and greater financial loss. Sometimes an alternative strategy is the most prudent and least damaging course of action.

The relatively recent enactment of the Protection of Public Participation Act, 2015 (“PPPA”),[1] adds another layer of risk to consider when proceeding with a defamation claim. The Act added sections 137.1 to 137.5 to the Courts of Justice Act (“CJA”),[2] providing, among other things, a fast-track mechanism for the Court to dismiss a proceeding on a motion by a defendant where the Court is satisfied that the proceeding arises from an expression that relates to a matter of public interest.

Section 137.1 confers a broad scope of protection on expression, regardless of whether the expression is communicated in “public” or “private” and contains no restriction on the class of defendant who may seek a remedy.[3] Further, the term “a matter of public interest” is similarly broad in scope and likely to capture a wide range of expression.[4]  The PPPA also amends the Libel and Slander Act[5] to extend the application of the defence of qualified privilege.

Significantly, subsection 137.1(7) of the CJA provides that if a judge dismisses an action under s. 137.1, then the moving party is prima facie entitled to costs of both the motion and the proceeding on a full indemnity basis.  While there is discretion given to the judge not to award the full indemnity costs to the moving party, the financial risk for the plaintiff is very real and must not be ignored.

It is crucial when drafting a pleading that a lawyer has the requisite expertise in defamation law. The jurisprudence is replete with defamation claims being struck at the pleadings stage. Courts have struck defamation claims on, among others, the following grounds:

• A notice of libel was not delivered in time.[1]
• A notice of libel was not properly served on all proposed defendants.
• A notice of libel did not provide enough clear information to the defendants for an appropriate response to be considered and taken.[2]
• No government body may sue in defamation.[3]
• Groups have no claim for defamation where no individual member of the group is singled out and individuals in the group have not set out the full particulars of their individual causes of action.[4]
• The plaintiff was not sufficiently identified or identifiable in the words complained of.[5]
• The words complained of, when read in their entire context, are not capable of bearing a defamatory meaning.[6]
• Statements made during the course of court proceedings are subject to an absolute immunity and this immunity extends to a report which formed the basis of the witness’ evidence.[7]

In deciding whether to sue for defamation, a prospective plaintiff, with the assistance of his or her lawyer, should consider, among other things, the following:

• Have special damages been suffered to such an extent that the need to recover the loss outweighs the financial and reputational risks of proceeding?
• Is the plaintiff truly identified or identifiable from the words published? If not, there is a risk that the plaintiff will self-identify by bringing proceedings and cause reputational harm that might not otherwise have arisen.
• Has the reputation of the plaintiff in the community been so irreparably damaged and has the plaintiff been so subjected to ridicule, hatred and contempt that only the vindication resulting from a favorable court judgment will address the damage?
• How prominent is the publication? If the publication of the defamatory statements appears on the Internet, then consider whether the website or blog has a large viewership. Also, consider whether the plaintiff’s name in relation to the defamation appears on a Google search beyond the first couple of pages of a search result.  If not, then is the publication going to be seen by members of the community and cause reputational damage of any lasting impact or at all?
• Is the plaintiff being overly sensitive to the publication of the words? It is critical to consider whether a client’s perception of the meaning of the subject words differs from what an ordinary reader would conclude.
• If the defamatory statement is made to a small group, then consider whether the maker of the statement is really only “preaching to the converted”. Before proceeding with a claim, it is important to consider how much harm has in fact been done to the client’s reputation.
• Will the bringing of legal proceedings simply further engage an adversary, who rather than cease in the offending conduct, will simply amplify their attack.  Some people have an axe to grind and will persist in their defamatory conduct even in the face of legal proceedings. As a result, a client’s time and resources in redressing the continued attacks may be significantly depleted.  In circumstances involving an unrepentant defendant, clients should be prepared for a battle.
• Will the bringing of proceedings bring the offending statement into the public domain where the dispute and the alleged defamation will be able to be reported on by mass media with immunity? This relates to the earlier consideration about a plaintiff’s “self-infliction” of harm. Sometimes the best course of action is to keep one’s head down and let the publication slip into oblivion, particularly where the scope of the publication is restricted.
• Relatedly, has the harm caused by the defamation subsided or been mitigated or is it likely to become mitigated over time? It is important for lawyers to advise clients that it may take the action several years to come to trial at which point the wounds of the defamation may have healed, only to be reopened by the public trial process.
• If the statement complained of is in relation to a matter of public interest will it be caught by the provisions of the Protection of Public Participation Act? A lawyer must counsel his or her client that the legislation may result in a summary dismissal even if the statement complained of is, in fact, defamatory and the action has some merit.

As alternatives, prospective plaintiffs and their lawyers should consider, among other things, the following:

• If the offending statement was published in print or on a website with a consistent readership, then consider a letter to the editor setting out the client’s position and response.  Most responsible media will readily publish opposing views for the consideration of their readership.
• If the offending statement appears on a Google search, then investigate whether it can be pushed down in priority with both effective Search Engine Optimization (“SEO”) and the publication of fresh positive content. A word of warning here. SEO is both a science and an art. There are many service providers who will promise the moon and after great expense will achieve no meaningful results.
• Lawyers should counsel clients to seek the publication of an apology, retraction or clarification. These must be carefully and skillfully drafted to balance the need for vindication against the risk of republishing the defamation, which may inflict greater harm. Also, consideration must be given to what the other party is likely to accept. Requesting an apology that has no hope of being accepted simply serves to waste time and money.
• If the subject of the defamation is a public figure or the issue raised is one of public interest, then a strategic press release should be considered for mass distribution. PR firms should always be engaged in conjunction with legal counsel. The last thing a client needs is to create liability by carelessly shifting blame to another party, who may then sue the client for defamation.  An effective press release will ideally be published to the same audience to whom the original defamation was directed.
• If an action has already been commenced, then a lawyer should propose an early mediation.  Early mediation may provide an effective mechanism for executing an exit strategy which may serve all parties’ interests. In order to capitalize on the effectiveness of mediation, a lawyer would be wise to choose a mediator who has expertise in defamation law, who will be sensitive to the respective interests of the parties and who can provide an authoritative reality check for the parties.
• Consider using the simplified procedure rules, which permit a claim for damages in the $25,000 to $100,000 range.  Restricted discovery and summary trial provisions in the simplified procedure rules may result in a less costly and more timely disposition of an action.[1]
• Consider bringing any action in the Small Claims Court where matters are disposed of with less cost and delay:  Damages of up to $25,000 may be awarded and vindication may still be achieved through the Judgment of the Court. Nonetheless, in terms of vindication for the plaintiff, there remains a perception that a Small Claim Court win does not carry the same weight as a Superior Court win.
• Counsel and parties should be assessing the wisdom of litigation on an ongoing basis, in particular, after delivery of the defence, the delivery of a section 137.1 CJA motion, and production of documents and discoveries. Defendants are often willing to avoid the cost of ongoing litigation and the potential exposure, through a without costs dismissal of a proceeding.

Lawyers have a professional obligation to not only advise clients on the legal merits of a proposed action, but must also advise clients on the benefits and risks of proceeding with a claim, especially as they relate to the management of the client’s overall reputation and financial interests. Often, in the heat of the moment and when the wounds of insult are the deepest, it will fall to lawyers to protect the best interests of their clients by considering restraint or alternatives to an all-out war.

*Howard Winkler is a Toronto lawyer who specializes in the law of defamation and reputation management. Mr. Winkler is regularly selected by counsel practicing in the area to mediate defamation disputes.

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