Howard Winkler

Anti-SLAPP legislation is not achieving its goal of providing an early expeditious means of preventing the misuse of the judiciary by litigants who unduly attempt to silence expression related to matters of public interest.

The Supreme Court of Canada (SCC) has said the crux of these motions is the weighing of interests under section 137.1(4)(b) of the Courts of Justice Act. In my view we should get right to this analysis and avoid spending exorbitant amounts of time and money on the merit of defences analysis under s. 137.1(4)(a)(ii).

Ontario and British Columbia have instituted anti-SLAPP regimes, aimed at weeding out SLAPPs that are not in the public interest. Yet these protracted hearings are failing to be the expeditious legal process that was originally envisioned.

To review, in 2020 the SCC described strategic lawsuits against public participation (SLAPPs) as: “lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest … in a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.”

Anti-SLAPPs can be difficult and expensive

The SCC in Pointes Protection correctly described the crux of the legislation to be the weighing of the public interest in protecting the speech in issue against the public interest in permitting the action to proceed. However, getting to this stage of the analysis under the legislation can be difficult and expensive.

Before getting to the weighing exercise, the court must however consider what has been described as the merit tests under the legislation.

The SCC, on one hand, has reminded parties and motion judges that they ought not to take a deep dive into the merits of the claim or defences. Yet that is still happening as a result of the Courts’ conflicting requirement that the merit of the defences, or the lack thereof, be considered.

I’ve done a cursory review of anti-SLAPP motions. The cost awards are often in the $100,000 to $150,000 range, and in one case they exceeded $800,000. Since those awards reflect the amount of time and effort the parties are putting into these motions, this shows how the intent and spirit of the legislation is being thwarted. Forcing a defendant to have to finance a SLAPP motion is in itself a disincentive to speaking out in the public interest.

‘The entire trial [is] being played out in advance’

The insightful comments of Justice Frederick L. Myers of the Ontario Superior of Justice illustrate the failure of the anti-SLAPP regime. In a December 2021 decision he noted: “These motions tend to be complex and expensive proceedings. Although they are not intended to involve a deep dive into the merits or even a detailed review akin to a motion for summary judgment, they usually do represent virtually the entire trial being played out in advance.

“Plaintiffs are usually not willing to leave evidence in their briefcases when they risk their claims being dismissed,” Justice Meyers added. “Defendants similarly want to show that there are no grounds to defeat their defences, that the plaintiff has suffered little if any actual harm, and that the dismissal of the proceeding is the just outcome.”

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Justice Myers then employed an apt sports analogy, noting “despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is a more like a marathon”.

Unwarranted anti-SLAPP motions are also taking a toll on our justice system as a whole. Justice Myers talks about how other important legal matters are now being bumped from the court’s hearing list as a result of the 60-day hearing requirement under the anti-SLAPP legislation. Since it was adopted in 2015, by my rough count, there have been more than 150 anti-SLAPP motions brought and almost 50 of those were subject to appeal. So, it is easy to see that the amount of court resources being expended on anti-SLAPP motions is significant.

A suggestion to resolve the issue

Here is one suggestion on how to solve the problem.

In light of the way the SCC has interpreted the legislation, I suggest that the merits-based test related to defences be amended. There are two merit-based tests in the legislation. The first is that the plaintiff satisfy the judge that the claim has “substantial merit.”

The SCC has essentially ignored the word “substantial” and has declared that this merits-based test is satisfied merely by a demonstration that the elements of the tort of defamation are met.  A very low threshold. The second merits-based test requires the plaintiff to satisfy the judge that the defences are not valid. Instead of setting the bar on this test similarly low, the court has interpreted this section as requiring an examination of the merits of the defences. This is what is causing, in my opinion, the frustration of the intent of the legislation and such great expense.

My solution is to amend the legislation to clarify that the merits-based test on defences only requires that valid defences be pleaded and that there be some evidence, which if believed, would support the dismissal of the claim. That’s it. Jettison the current requirement of showing in whose favour the defences tend to weigh.

Getting back to the ‘crux’ of the legislation

This would then allow the parties and the motion Judge to focus on what the SCC described as the “crux” of the legislation; namely, the weighing of interests.

In terms of the volume of appeals, this could be abated by the Court of Appeal relying more heavily on the principle of deference to motion judges’ exercise of discretion and refraining from essentially considering matters de novo, which seems to have been the practice in the early cases.

In early January, the SCC granted an appeal of the B.C. Court of Appeal anti-SLAPP decision in Hansman v. Neufel. When the Supreme Court hears this case, I’m hoping it will express their dissatisfaction with the way anti-SLAPP motions are playing out in practice.

This article was published by LegalMatter on February 8, 2022.

Proposed legislation in Australia to make Facebook and Google responsible for policing defamatory material on their sites is rather draconian, but I suspect it will lead to a reasonably balanced compromise that the rest of the world will want to follow.

Australia is looking at forcing online platforms to reveal the identities of people with anonymous accounts if another person complains that the material they posted is defamatory. If the online platform refuses to do that, they would assume legal liability for that material jointly with the account holder. This is based on traditional legal principles that in general anyone who is involved in the publication of false and defamatory material shares liability for any damages suffered.

Another part of the proposed legislation would make social media operators legally responsible for defamatory comments beneath publishers’ posts on their platforms.

Both initiatives are commendable in their attempts to allow people to protect their reputations. However, there are problems with both initiatives, which are easily cured.

First, there are sometimes legitimate reasons for not disclosing someone’s identity online, such as in the case of a whistleblower or the victim of abuse. Take away their anonymity and you take away their willingness to expose what could be the criminal actions or misconduct of another person or company that it is in the public interest be disclosed.

As far as making online platforms responsible for each and every comment on their sites, consider that Facebook has more than 2.8 billion users worldwide. It is easy to see why the task of monitoring every comment is simply beyond the realm of reality or reasonableness. So, too, is imposing liability on them for every post.

While the blanket liability being proposed in Australia goes too far, legislators can look elsewhere to find a more practical and well-balanced solution — such as Ontario.

In its 2020 report, Defamation in the Internet Age, the Ontario Law Reform Commission proposed a workable solution, which Ontario has so far not acted on. The commission recommended that if alleged defamatory content is posted, the complaining party can electronically advise the online provider of their objection to the post. The platform would then inform the original poster of the objection and give them a short period of time to respond. If there is no response, the post would be automatically taken down.

This simple procedure, which can be carried out electronically without any human intervention, will eliminate much low value and harmful speech from the internet that the original poster is not prepared to defend.

On the other hand, if the person who originated the post believes the material is not actionable and wants it to remain online, the platform would have an obligation to retain and safeguard the identity of that person in the event of future litigation. Their name would not be disclosed to the complainant, thus at least initially protecting the identity of a whistleblower or victim. If a legal action is then launched, a court would decide whether it is in the public interest to disclose the identity of the poster.

Checks and balances provided by the court is the key advantage of this proposed system, as compared to the blanket disclosure obligation being promoted in Australia.

Only if the service provider fails to give the notice to the original poster or fails to preserve information as to the identity of the poster, would imposing liability on the service provider makes sense.

Perhaps we must also ask ourselves if it is time to turn off the comments on Facebook. Most represent low-value speech, do not advance the public interest and present the potential for great harm. That is already happening in the mainstream media, where comments are either turned off altogether for some types of stories, or the outlet requires the poster to register and provide their full name and identification before leaving a comment.

If we did something similar across social media, it is likely low-value speech would either disappear or people’s language or comments would be tempered.

Still, I commend the Australian legislators for having the guts to advance this legislation. They are miles ahead of other jurisdictions, such as the United States and Canada, which have talked about the need to regulate social media but have failed to do anything constructive.

Australian Prime Minister Scott Morrison is quoted in media reports as saying that if Facebook left Australia over the new law, that “would be an admission that they have no interest in making the online world safe.”

I wouldn’t go that far.

I believe Facebook and other online players need financial motivation to act. The legislation proposed by Australia, or the Law Reform Commission, will provide that incentive. Only once we develop some precedent of liability on platforms and posters, will people start to change their behaviour.

To return to Australia, I’m betting the current legislation will be watered down to create something that is more nuanced and balanced, that recognizes the value of controlling defamatory speech while protecting the right to anonymous expression. Once they achieve that, Canada should get on board with similar legislation.

This article was published by Toronto Start on December 23, 2021.

Not so long ago, the mass communication of information was the domain of “trusted” media who, with the aid of writers, fact checkers, editors and publishers/broadcasters had a monopoly on distribution channels. With the advent of the Internet, and in particular with the creation of platforms like Google, Facebook and Twitter, anyone with a computer now has a voice which can be heard worldwide.

This allowed silenced voices to be heard, which was very much in the public interest, but it also facilitated anonymous malicious speech which causes immediate and devastating harm. This harm is inadequately addressed by our current litigation system which is too slow and expensive to provide meaningful mitigation of the harm done.

Much has been done to protect public interest speech, like in Canada the judicial adoption of the new defence of responsible communication and the introduction of anti-SLAPP legislation. However, little has been done to address the harm caused by the malicious and defamatory use of platforms like Google, Facebook and Twitter.

Australia, by contrast, has been proactive. There, courts and legislators are leading the way in protecting against the harm caused by low value defamatory speech on the Internet.

Recent Australian court decisions imposing liability on Google and Facebook for the content they facilitate shows how online defamatory content can be controlled. Australian courts have gone so far as, and perhaps too far in, imposing liability on account owners for the defamatory comments posted by others. Early in September, Australia’s high court ruled that online publishers using the platforms of Google and Facebook were legally responsible for the comments added to their posts by third parties, even if the stories themselves were factual and accurate.

The positive impact of all of this has been to force and coerce Google and Facebook to modify their platforms to better protect the reputations of the innocent.

After that ruling, American-based CNN asked Facebook to craft a blanket disable feature so that the news organization could avoid any legal risk. Facebook refused. CNN responded by disabling its Facebook pages in Australia. Facebook caved and gave in to CNN’s demands for a blanket disable feature in that country. The Toronto Star also recently disabled comments on its articles posted to Facebook to protect their journalists from abuse.

Australia passed legislation that forced online platforms to pay for news content they use. Google threatened to leave Australia. When that failed to have any effect, they relented and entered negotiations for the payment of royalties for their use of others’ content. Following that lead, trusted media in Canada such as the Toronto Star and The Globe and Mail have now negotiated their own compensation packages for the use of their content on Facebook’s platform.

Also in Australia, Facebook, Google and Twitter established a committee with independent oversight to combat online misinformation — but only after the government threatened legislation to achieve that goal.

In response to the legal developments in Australia, a Facebook spokesperson was recently quoted as saying “Australian defamation laws need to be reformed.”

Facebook has it quite backwards. Instead, it is Facebook, and other media platforms that can and should reform themselves to prevent the harm their platforms are causing.

Australia’s proactive efforts — by way of legislation or the threat of legislation — and the application of traditional common law principles by their courts, is forcing positive change among platforms such as Google and Facebook.

The question is: Why is the rest of the world not following Australia’s lead?

There is a global acknowledgment of the problems caused by the current functionality of Facebook, Google and Twitter.

Both the Republicans and Democrats in the U.S. have talked about repealing or modifying the blanket statutory immunity provided to website operators, but no action has been taken. In Canada, the Trudeau government has threatened to control media platforms, but they’ve really done nothing of substance to deliver on that.

In Ontario, in March of 2020, the Law Commission of Ontario delivered a Final report on Defamation Law in the Internet Age which contained many uncontroversial and helpful recommendations to deal with the harm caused by the Internet, yet the Ford government has failed to act on any of the recommendations. One of the most useful recommendations was the adoption of a notice and take down provision which would quickly rid the Internet of harmful speech which the original poster is not prepared to defend. At a minimum, this recommendation should be immediately implemented.

And to be clear, free speech is not the issue here.

What we’re dealing with in most of these cases is low-value speech. It is either misinformation or anonymous defamatory content, which pales in importance to the right to protect one’s reputation.

I hope Canada and Ontario join Australia in efforts to force online platforms to take responsibility for the content on their sites. After all, much of the world relies on Google and Facebook for the dissemination of information. Because of that, they must be held to account for the defamatory and harmful comments that their sites allow users to freely post.

This article was published by Ontario Bar Association on December 14, 2021

By LegalMatters Staff •A recent Superior Court of Justice ruling rejecting an application to dismiss a defamation lawsuit under anti-SLAPP legislation will likely be back in court on appeal, says Toronto litigator and lawyer Howard Winkler.

Winkler, principal and founder of Winkler Dispute Resolution, says he believes the judge in CUPW v. B’nai Brith Canada et. al posed but did not answer the key question of whether the public interest in protecting the statements made by the defendants outweighed the harm suffered or likely to be suffered by the plaintiff.

“In my view, the judge’s failure to engage in that balancing of interests is fatal to the decision and for that reason, an appeal will be successful,” he tells LegalMattersCanada.ca. “It’s a curious decision in that the judge clearly understood what needed to be done, what needed to be answered, but he didn’t complete the analysis.

“It’s too early for anyone to comment on the merits of the case because that would involve a deep examination into the facts,” adds Winkler, who was not involved in the case but comments generally.

Anti-SLAPP

Under Ontario’s anti-SLAPP (Strategic Litigation Against Public Participation) legislation, judges have the power to dismiss lawsuits if the defendants can convince the court that the action arises from an expression that relates to a matter of public interest.

The amendments to the Courts of Justice Act are also known as the “Gag Proceedings,” sections intended to, among other things, encourage individuals to express themselves and promote broad participation in debates on matters of public interest.

Decision pending

Winkler appeared before the Supreme Court of Canada (SCC) last fall on behalf of lawyer Maia Bent in Maia Bent, et al. v. Howard Platnick, et al, a $15-million lawsuit brought by Platnick. This is the first case in which this legislation – which also has been enacted in British Columbia – has been considered by the SCC. The court has yet to release its decision.

Winkler notes that in relation to CUPW v. B’nai Brith Canada et. al “what is striking is its two high-profile parties, both of whom participate or are active in the public domain on political matters.”

According to the decision, the union “takes positions on political and human rights issues from time to time and it has for many years supported a boycott of Israeli products because of what the union believes is Israel’s mistreatment of Palestinians in the occupied territories,” which is also known as the Boycott, Divestment and Sanctions Movement.

Following a complaint to B’nai Brith by a Jewish member of CUPW about support for the movement, the organization examined CUPW’s activities in 2018 and discovered the union’s involvement with PPSWU and found postings on the PPSWU Facebook page “which appeared to be pro-Palestinian and which B’nai Brith interprets as implicitly calling for the destruction of Israel,” court heard.

Facebook postings

B’nai Brith called on CUPW to comment on the PPSWU Facebook postings, advising it intended to publish a story about CUPW and its association with PPSWU, court was told.

B’nai Brith published the first of two press releases on July 31, 2019, which are the subject of the defamation action.

Winkler says that on the current state of the law, as expressed by the Ontario Court of Appeal, s. 137.1 (4) (b) – the weighing of public interests – “is the heart of the anti-SLAPP legislation.”

Because he says the judge failed to address this issue, Winkler believes the decision is likely to be overturned or sent back.

As to the balancing of interests, he says “it strikes me that the public interest in the expression is very high.”

“At this stage, you don’t get into a discussion of whether the words complained of are true or not,” Winkler says. “There is clearly a high public interest in discussion related to the involvement of CUPW in matters such as this.

“I think on a consideration of the balancing of interests it’s very likely that B’nai Brith would succeed in having the action dismissed,” he says.

Originally published by LegalMatterscanada.ca on March 13, 2020

By LegalMatters Staff • Ordering anonymous online posters to pay thousands of dollars in damages for defamatory statements they made on an internet chat forum is “a good starting point” but falls short of effectively addressing the issue, says Toronto litigator and lawyer Howard Winkler.

In an Ontario Court of Justice judgment released on Jan. 13, Justice Frederick Myers ordered 12 anonymous posters to pay damages and court costs for defamatory comments made on a website chat forum.

“If people want to make hurtful statements about others and then try to hide from the responsibility to prove the truth or other justification for doing so, then … their cowardice is reprehensible and, in my view, they should bear costs on a substantial indemnity basis,” Myers writes.

Winkler, principal and founder of Winkler Dispute Resolution, says the decision is a victory for the plaintiffs even though the chances of collecting damages appear slim.

“The good news is that by getting a judgment the plaintiffs could argue that their reputations have been vindicated and that’s an important remedy in a defamation case,” Winkler tells LegalMattersCanada.ca. “What I find curious from a legal perspective and what would have pushed the envelope in terms of legal principle, is if they had also sued the website operator.

“That would have advanced the limits of the current law in Ontario. I’m not sure the issuing of a judgment against a John Doe really moves the legal envelope very far.”

The Globe and Mail reports that the defamatory comments were posted in 2014 and 2015 on an investor-oriented message forum directed at a publicly traded pharmaceutical company, and its two principals, criticizing them personally and professionally.

While the website operator was unable to provide the real identities of the posters, it was able to give the plaintiffs email addresses, allowing them to serve the lawsuit, according to The Globe.

Only one defendant responded to the lawsuit and his case is ongoing, The Globe reports, while the others were noted in default.

12 commentators ordered to pay damages

In his ruling, Myers awarded general damages ranging from $7,500 to $35,000 against each of the 12 and ordered them to pay $60,000 in legal costs, while noting “how the plaintiffs will go about amending the title of proceedings for enforcement purposes once they identify one or more of the defendants is not before me.”

 “I make no findings about how any judgment is to be enforced against a person who is currently identified only by a pseudonym,” he writes.

Winkler, who was not involved in the case and comments generally, says one interesting aspect to note is that “we don’t know if any of the traditional defences would have succeeded if the matter had been defended.”

He says while the plaintiffs scored a “symbolic victory of vindication, it cost them a lot of money and they are unlikely to recover any of the damages or costs awarded.”

Going after an anonymous poster is akin to attacking the symptom while failing to address the cause, says Winkler, using recent cases in Australia as an example of a better approach.

“Their courts have had the opportunity to consider the issue and have ruled quite clearly and consistently that if a website operator has knowledge of defamatory content on their site and they don’t remove that content, they become co-publishers and they become responsible,” he says. “We haven’t had the opportunity to have that principal tested here but if one is really concerned about the proliferation of anonymous defamatory material on the internet you need to look to those websites that are facilitating it.”

Winkler says while there may be instances where pseudonyms are permissible, the website operator should still be responsible for collecting the true identity of the poster, “then you would be able to hold those people accountable for what they say.”

“If knowing that your real identity can be disclosed or discovered, I think people will be more careful about what they say and I think that’s part of the solution to the problem,” says Winkler, adding website owners must also be forced to face up to their responsibilities.

“All you need is one big judgment against an operator for knowingly permitting defamatory material to be posted on their website to have them change their behaviour.”

A warning sent to others

He says Myers’ judgment serves as a warning to those who try to hide behind a pseudonym.

“What it says to an anonymous poster is we can get a judgment against you and if we can find out who you are, you are going to be held accountable. So it’s a good starting point,” Winkler says.

However, he cautions that more has to be done. 

“Confirming you can obtain judgment against a John Doe is important but I don’t think it amounts to a radical advancement of the law of defamation in holding people accountable for what they say,” Winker says. 

“I think the best way to prevent these kinds of anonymous defamatory postings is to require the platforms to take more responsibility and be more accountable for what they are facilitating.” Such an advancement should not have the effect of limiting genuine free speech.

For more, see Howard Winkler’s interview with The Lawyer’s Daily

Originally published by LegalMatterscanada.ca on February 10, 2020