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Certified Specialist in Civil Litigation by the Law Society of Upper Canada

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Defamation

Lawyer hopes Ontario lawmakers will pay attention to Appeal Court’s message in anti SLAPP case

March 14, 2023 by Ian Burns

A lawyer is saying he hopes politicians at Queen’s Park pay close attention to an Ontario Court  of Appeal decision involving the province’s laws on fighting strategic lawsuits against public participation, or SLAPPs, to see if the legislation is working the way they originally intended it to. 

The Ontario Superior Court of Justice had dismissed an anti-SLAPP motion brought by funeral home company Park Lawn Corp. against investment management company Kahu Capital  Partners Ltd., which had brought a defamation action over comments that Park Lawn CEO J.  Bradley Green had made in a funeral industry publication about Kahu’s relationship with his predecessor at the company. 

Justice Paul M. Perell considered the three-part test for anti-SLAPP motions set out in Ontario’s  Courts of Justice Act and refined by the Supreme Court of Canada in two seminal decisions  (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, and Bent v. Platnick,  2020 SCC 23). At the first stage, employing a generous definition for public interest, he concluded that the impugned statements concerned a matter of public interest. At the second stage, he concluded that there were grounds to believe that there was substantial merit to the  defamation counterclaim and that the appellants had no valid defence (Park Lawn Corp. v. Kahu  Capital Partners Ltd., 2022 ONSC 3341). 

On appeal, Park Lawn did not take issue with those first two conclusions, but argued that Justice  Perell was wrong on the third stage of the test when he ruled that the harm likely suffered by  Kahu was sufficiently serious that it outweighed the public interest in protecting the appellants’  freedom of expression on a matter of public interest.

But Ontario Court of Appeal Justice Sarah Pepall ruled against Park Lawn and Green, while  noting the overall theme in the legislative debates over the anti-SLAPP legislation was that it 

was designed to stop a plaintiff from silencing a defendant by pursuing meritless litigation that served to intimidate and undermine public expression. 

“The process was intended to be efficient and economical. Presumably this would pre-empt the  need for a motion judge to conduct a granular analysis,” she wrote. “[A] deep dive into the  record is not required.” 

But Justice Pepall also noted that “unfortunately” the practice has evolved into quite a different state than that anticipated by the legislature and by the Supreme Court — and that they tend to be  expensive. She wrote that the case was a good example of this, in that Park Lawn delivered a  costs outline of just over $375,000, whereas Kahu’s costs were approximately $31,000. 

“To address the objectives of the legislation, it bears repeating that the emphasis of the motion should be on the ‘crux’ or ‘core’ of the analysis, namely the weighing exercise. This should not  involve a trial of the issue or as some have put it, a ‘trial in a box,’” she wrote. “Rather, the motion is a screening procedure. At the third stage of the test, the weighing exercise, a technical,  granular analysis is not required. Instead, as directed by the Pointes Protection and Bent  decisions, the motion judge should step back and ask what is really going on.” 

Justice Pepall suggested that “as a guideline” the costs of an anti-SLAPP motion should not generally exceed $50,000 on a full indemnity basis, while also noting there will be exceptions  and motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case. 

“The cost of litigation is a plague that has infected our system of justice and serves to undermine  its efficacy. Here the Legislature enacted a provision designed to help people avoid a costly defamation lawsuit and preserve the opportunity for public discourse and expression, but at the same time allow legitimate actions to proceed,” she wrote. “The procedure was to be efficient  and inexpensive [but] ironically, a procedure intended to avoid costly, unmeritorious, protracted  defamation lawsuits has developed into a platform for sometimes costly, unmeritorious and  protracted litigation.” 

And Justice Pepall also held that “consistent with the legislation” anti-SLAPP motions should be heard no later than 60 days after the notice of motion is filed. 

“Subject to court availability, motion judges should generally compel compliance with this 60- day time parameter. The timeframe for these motions should act as a reminder that they are meant to be limited in scope,” she wrote. “Lastly, it bears repeating that a motion judge’s determination … will be entitled to deference on appeal absent an error in law or palpable and overriding error. This is especially so with respect to a motion judge’s weighing of the public interest. Parties should be mindful of this standard of review when seeking to appeal an order in  anti-SLAPP proceedings.”

 

Justice Pepall was joined by Justices Gary Trotter and Julie Thorburn in her decision, which was issued Feb. 28 (Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129). 

Joseph Groia of Groia & Company, which represented Kahu, said the case was a good example  of not only the problems with Ontario’s anti-SLAPP legislation but also the larger issue of the costs of civil litigation matters in the province. 

“I really hope that the people up at Queen’s Park will pay some attention to what the court has  said, because they really need to look at whether this legislation is working the way they expected it to or wanted it to,” he said. “The theory is great — the theory is you don’t want to have important questions or debates on matters of public importance stifled by the threat of strategic litigation. But it has now taken on a completely dysfunctional aspect, and what I mean  by that is we are seeing big companies like Park Lawn are using the legislation to try and do  exactly the opposite of what it was intended to do.” 

Media and defamation lawyer Howard Winkler of Winkler Law said the consensus on anti SLAPP legislation is that it is meant to be a relatively inexpensive and expeditious way of weeding out defamation cases where the harm likely to be done does not outweigh the public  interest in its expression.

“And that is a good objective, but a ton of time and money is being spent on parties fighting over  whether there are valid defences or not, because the Supreme Court has set a high threshold for that,” he said. “So, what has happened is that a defendant can bring an anti-SLAPP motion and,  because of the complicated nature of the defences test, can ring up hundreds of thousands worth  of costs — and under the regime subject to an order from the court the defendant who succeeds  on an anti-SLAPP motion gets full indemnity costs.” 

Winkler said what the Court of Appeal is trying to do is “make what I call bad legislation work  through judicial interpretation.” 

“The whole object of the legislation is to deter defamation actions where the harm suffered is not really serious, but what has happened is because of the cost regime under these motions bringing  an anti-SLAPP motion has been itself used strategically,” he said. “What the court is really  saying is, notwithstanding the other aspects of the test, focus on the weighing of interest — and  if you focus on the weighing of interests and you don’t get caught up in a huge deep dive into the  question of whether the defences are valid, then the object and spirit of the legislation might be  achieved.” 

Groia said he has been concerned for many years that costs have gotten out of control, pointing  to Justice Pepall’s conclusions about the “plague” infecting the justice system. 

“I do a lot of work in Alberta and B.C., and they have a cost system that I think Ontario needs to  take a good hard look at adopting because they have tariffs,” he said. “If you argue a case in B.C.  or in Alberta you are liable for costs, but those costs are a fraction of what they would be in  Ontario. And the problem is that if you are a big corporation, you can afford it — but if you are a  little individual suing a big corporation you really can’t.” 

Counsel for Park Lawn did not respond to a request for comment.

The Lawyer hopes Ontario lawmakers will pay attention to Appeal Court’s message in anti SLAPP case was published by Law360 Canada on March 8, 2023.

Filed Under: Defamation

‘Important’ decision balances open court principle with protection of sensitive information: lawyer

January 19, 2023 by Ian Burns

The B.C. Court of Appeal has outlined a process to follow when judges deal with media requests in “rare and exceptional cases” where there is no information publicly available about a court proceeding — and revealing that information to counsel for the media would represent too great a risk to an important public interest.

The court’s decision comes as the result of a challenge from Postmedia Network Inc. after a Vancouver Sun reporter was denied access to a court proceeding in which the judge had issued orders sealing the court file, banning publication of information and requiring the action to proceed in camera. Postmedia filed an application in the B.C. Supreme Court registry seeking access to the materials before the court that had led to the orders restricting court openness being granted, for the purpose of making a further application to vary or vacate those orders.

Supreme Court Chief Justice Christopher Hinkson denied the application and told Postmedia could instead file an originating application to receive an audience with the judge — which was later  dismissed. Postmedia appealed the ruling, alleging that the process taken was procedurally unfair and  that the reasons are inadequate and reveal an error of law.

But the Court of Appeal dismissed the challenge, ruling there was no procedural unfairness to Postmedia  and noting the case is the “rare and exceptional one” in which revealing the very nature of the interests  at stake would risk disclosing them.

The court wrote that it is “well established” that the open court principle, essential to the rights of  freedom of expression and freedom of the press under s. 2(b) of the Charter, is fundamental to our  democracy and to the rule of law — but those rights are not absolute.

“In certain circumstances, public access to confidential and sensitive information will endanger and not  protect the integrity of our justice system,” the court wrote. “Courts have discretion to make orders  limiting court openness where disclosure of such information would pose a serious risk to an important  public interest; where the order sought is necessary to prevent this serious risk because reasonable  alternative measures will not; and where the benefits of the order outweigh its negative effects.” 

But the court did outline a process to follow when the media seeks to bring an application to vary  complete sealing orders, and orders that a sealed case proceed behind closed doors. 

“Specifically, we are confronted with the need for a procedure to govern a situation where, by virtue of  the fact that there is no information publicly available about a proceeding, the media must make a  preliminary application for access to materials in order to understand the very basis for the orders  restricting court openness, and consequently to make meaningful submissions in a further application to  vary them,” the court wrote. 

In such circumstances, the court wrote it “may be preferable” for a judge to appoint an amicus curiae to  make an argument on how to both protect the privilege in issue and realize the open court principle. 

“In the usual situation, the media would have access to at least some material upon which to base  submissions. Occasionally, circumstances may arise in which this information cannot be given to the  media representatives themselves, but only to their counsel upon an undertaking not to disclose it,” the  court wrote. “In the situation at hand, where even revealing the nature of the privilege to counsel for  the media represents too great a risk, an amicus curiae can provide submissions regarding the  importance of ensuring that the privileges in issue are not overextended, and the way in which this can  be accomplished in the context of the case.” 

Doing that would have led to a better process in the case at hand, the court wrote. 

“When the media brings an application requesting access to materials in a fully sealed and in camera  case, the judge below should appoint an amicus to whom information can with less risk be revealed in  order to make argument,” the court wrote. “The judge must still take great caution, and material should  be redacted as needed. The result may still be a complete sealing of the file and an entirely in camera  proceeding … but the public and the parties will at least know that the matter has been fully argued and  considered.” 

The court further wrote that an application brought by the media should, at first instance, be an  application to vary or vacate the orders restricting court openness, rather than a preliminary application  for access to materials. 

“In a case like this, they amount to the same thing: allowing access to materials leading to the Restrictive  Orders would effectively be a variation of them,” the court wrote. “If a decision of the court below is to  come before this Court, it should be a substantive decision as to the need for and scope of the orders  themselves, with the benefit of the arguments of the amicus. This would result in a better use of both  courts’ resources.” 

The unanimous decision was authored by a three-judge panel of the court consisting of Chief Justice  Robert Bauman and Justices Lois Frankel and Anne MacKenzie. The court’s decision to dismiss the  appeal was made public Dec. 21, with a corrected judgment issued Jan. 9 (Postmedia Network Inc. v.  Named Persons, 2022 BCCA 431). 

Media and defamation lawyer Howard Winkler said courts have long had to deal with the struggle  between the principle of an open court and the protection of highly sensitive information — and the  likelihood of harm from the disclosure of such information. 

“The court correctly says it is only a very rare and extraordinary case in which the court will in a sense  make its decision in silence and in secret, outside of view of the public and outside of the view of the  media,” he said. “And what is really difficult about these situations — and the problem that was faced  by Postmedia — is that their counsel essentially had to argue this matter of the important principle of an  open court not having any information whatsoever about the underlying proceedings. And that really  puts the media at a disadvantage and the protection of the open court principle in jeopardy.” 

Judges across Canada will likely look at the case as one example of how the courts in one province have  attempted to create some kind of balance between open courts and the protection of information, said  Winkler. 

“This situation is very rare — and we are not going to know what is sensitive about this information that  complete secrecy is required, except perhaps once the proceeding comes to an end,” he said. “What the  court did here was very important.” 

Winkler noted all lawyers are officers of the court, but what the decision recognizes is that lawyers for  the media have somewhat conflicting duties.

“They have a duty to the client and a duty to the court as officers of the court, and one would normally  think that a lawyer’s undertaking not to disclose information to their client would be sufficient,” he said.  “But what the court has recognized there are situations where even doing that has too much risk.” 

Counsel involved in the case declined to officially comment on the decision. 

The ‘Important’ decision balances open court principle with protection of sensitive information: lawyer article was published by The Lawyer’s Daily on February 16, 2022.

Filed Under: Civil litigation, Defamation

Howard Winkler and Eryn Pond of Winkler Law successfully negotiate a resolution of Patrick Brown’s litigation against CTV

March 18, 2022 by Howard Winkler

Conservative leadership prospect Patrick Brown settles lawsuit with CTV: ‘His name has been cleared

Catherine Lévesque, National Post

Key details provided to CTV for the story were factually incorrect and required correction. CTV National News regrets including those details in the story,’ the CTV statement says

Read more: https://nationalpost.com/news/politics/conservative-leadership-prospect-patrick-brown-settles-lawsuit-with-ctv-his-name-has-been-cleared

Michael Taube: Patrick Brown’s redemption may have changed Conservative leadership race

Special to National Post

Notwithstanding the damage done, Brown has finally received closure. If he runs for the federal Conservatives, he can do so on a clean slate

Read more: https://nationalpost.com/opinion/michael-taube-patrick-browns-redemption-may-have-changed-conservative-leadership-race

CTV News expresses ‘regrets’ over story that ended Patrick Brown’s leadership of Ontario’s Progressive Conservatives

By Robert Benzie, Queen’s Park Bureau Chief, Toronto Star

CTV News has expressed “regrets” over a 2018 story about then-Progressive Conservative leader Patrick Brown with “factually incorrect” information that caused “harm” to his provincial political career.

Read more: https://www.thestar.com/politics/provincial/2022/03/09/ctv-news-expresses-regrets-over-story-that-ended-patrick-browns-leadership-of-ontarios-progressive-conservatives.html

Filed Under: Defamation, Social Media

Environmental groups hit Alberta government, premier with defamation lawsuit

February 23, 2022 by Ian Burns

Five environmental groups are suing the Alberta government and Premier Jason Kenney for defamation, saying that they have deliberately misrepresented the findings of an inquiry into foreign influence on campaigns targeting the pace and scope of energy development in the province.

The challenge, which was launched by Environmental Defence, West Coast Environmental Law, Stand.earth, Dogwood and the Wilderness Committee, alleges Kenney and the Alberta government have made “defamatory statements that directly contradict the findings” of the final report of the public inquiry into anti-Alberta energy campaigns, which emphasized that “no individual or organization … has done anything illegal.”

After the report was made public, Alberta published a “key findings” document which contains a statement that said the report had in fact concluded that the groups had been “waging a decade- long campaign of misinformation” about energy development in the province. Kenney later posted statements on social media about “foreign-funded misinformation campaigns.”

The groups say the key findings document and the posts are false and defamatory, and are seeking $15,000 each in actual damages and an additional $500,000 in punitive damages against the premier. The statement of claim says the plaintiffs wrote Kenney last November to ask for a correction and an apology, but to date he has not done so.

“In a democracy like Canada, a high-ranking government official should be held accountable for attempting to publicly alter the results of a public inquiry and for using his office to condemn and defame those he doesn’t agree with,” Environmental Defence executive director Tim Gray said in a release.

The inquiry was launched in July 2019, shortly after Kenney took office, and was led by commissioner Steve Allan. After several delays and legal challenges, it issued its final report in July 2021.

Media and defamation lawyer Howard Winkler noted the inquiry report does not include the phrase “decades-long campaign of misinformation,” but also said that it is “not a vindication of the advocacy groups.”

“There are specific findings in the report about foreign funding flowing into Canada to support these campaigns, and the report calls for increased transparency with respect to the funding of these organizations. The issue in the lawsuit, if it proceeds, is going to be the truth of whether these groups engage in a campaign of misinformation,” he said. “In a society like ours there is a strong public policy in encouraging expressions of public interest related to political policy and politicians, so you don’t want to discourage people from engaging in a free flow of ideas even if they are critical or outrageous. But if you say something knowing it to be false that suits the definition of malice, and if you add to that some collateral of improper motive then it becomes even more objectionable and offensive.”

But Winkler who is not affiliated with any parties in the case, said if it had been brought in Ontario or British Columbia, he felt it would likely be struck under legislation aimed at preventing strategic lawsuits against public participation (SLAPPs).

“Ultimately the test in the anti-SLAPP legislation comes down to whether the plaintiff can satisfy a judge that the harm caused to them by the words complained of is sufficiently serious to outweigh the public interest in the expression itself,” he said. “But I think in the context of the report, and the public interest in the role these advocacy groups play, that the public interest in the expression, whether it be true or false, would be so high that they wouldn’t be able to demonstrate sufficiently serious harm.”

A representative from Kenney’s office did not reply to a request for comment. The allegations

made in the lawsuit have not been tested in court.

The Environmental groups hit Alberta government, premier with defamation lawsuit was published by The Lawyer’s Daily on February 16, 2022.

 

Filed Under: Civil litigation, Defamation

Anti-SLAPP legislation is failing. Here’s a possible fix

February 13, 2022 by 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.

Filed Under: Defamation, Social Media

Australia proves that Google and Facebook can be tamed

December 26, 2021 by Howard Winkler

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.

Filed Under: Defamation, Social Media

Google, Facebook: Your Day of Reckoning is Coming

December 17, 2021 by Howard Winkler

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

Filed Under: Defamation, Social Media

Party leader’s defamation action against pundit unable to clear anti-SLAPP hurdle, judge rules

November 24, 2021 by Ian Burns

People’s Party of Canada (PPC) leader Maxime Bernier has been dealt a blow in his defamation action against noted political pundit Warren Kinsella after an Ontario Superior Court justice dismissed it under a provincial law aimed at preventing powerful interests from bringing actions which chill speech on issues of public policy.

Bernier, a former federal cabinet minister under Prime Minister Stephen Harper, alleged that the Conservative Party hired Kinsella and his consulting firm Daisy Group to run a secret effort called “Project Cactus” to discredit Bernier during the 2019 federal election. Statements on Kinsella’s website included entries calling Bernier a racist and a bigot, equating him with then-U.S. President Donald Trump and former Ku Klux Klan leader David Duke. Bernier alleged the “dirty tricks” campaign cost him his seat in the House of Commons, which he had held since 2006 and the purpose of Project Cactus was to “staunch the flow of Conservative support to my party” through “lies, innuendo and facts taken out of context.”

Kinsella and Daisy Group sought to have the case dismissed under Ontario’s legislation on so-called strategic lawsuits against public participation (SLAPPs), which requires the plaintiff in a defamation action to first establish that “there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence in the proceeding” and then prove “the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

And Justice Calum MacLeod ruled Bernier was unable to clear those hurdles and dismissed the lawsuit, writing that the former MP ran a “significant risk that his action will succumb to one of the defences of justification or fair comment.”

“A statement that a person is racist or a misogynist is a generalization or conclusion that is not itself either true or false. In such cases, the question is not whether the generalization is itself true, but whether it is a statement that can be justified by proof of specific instances that support it,” he wrote in Bernier v. Kinsella et al. 2021 ONSC 7451, which was issued Nov. 10. “The test is whether a reasonable person could reach the conclusion expressed based on the underlying facts if those underlying facts are true.”

Justice MacLeod wrote the case was not one of “false news” with no foundation in fact, and that Kinsella was basing his comments on actual positions taken by Bernier.

“[Kinsella’s] language may have been distasteful and he may well have taken his rhetoric to extremes that would normally be defamatory,” he wrote. “As the evidence shows, widespread characterization of Mr. Bernier and the PPC as racist and xenophobic or at least as pandering to those elements of the political spectrum was rife in the media. Comparisons with Donald Trump, Nigel Farage or Marine LePen were widespread. Mr. Kinsella may have approached his task with particular caustic enthusiasm, but, at worst, Mr. Kinsella’s postings can be seen as a drop of vitriol in a sea of criticism.”

For his part, Bernier said in a statement he was disappointed by the ruling and would be considering his options in the coming days. But Kinsella’s lawyer David Shiller celebrated Justice MacLeod’s conclusions, saying journalists, writers and bloggers would all benefit from them.

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

“It means those seeking high public office, like Bernier was, cannot use the laws of defamation to try and silence their critics,” he said.

oted defamation lawyer Howard Winkler of Winkler Dispute Resolution said he felt Justice MacLeod was correct to dismiss Bernier’s action and the case stands as a message that the anti-SLAPP legislation is going to catch debate and discourse of a political nature in all but the most egregious cases.

“The legislation is broader than just David and Goliath-type situations — it was intentionally drafted to protect expression related to matters of public interest,” he said. “It is absolutely correct for the court to look at who the parties are and the context in which the exchange is took place — and cases where you have public figures engaged in discourse related to public policy they should not be before the courts.”

Regarding the anti-SLAPP legislation itself, Winkler said it is awkwardly worded in parts and the Supreme Court’s interpretation of it has been complex and multi-layered. This has led to a lot of cases being brought, but not necessarily any consistency in the principles being enunciated by courts.

“And that is a problem. The purpose of the legislation was to create a summary process by which actions involving expressions related to public interest could be subject to an initial screening,” he said. “What we would have hoped for by now is a body of case law which has established a degree of predictability so parties and counsel could have some clear messaging from the courts in deciding whether to bring defamation actions or not.”

But Winkler also said it would be wrong to conclude Bernier’s loss meant it was now fair game to call someone a racist and any action related to that would be dismissed under anti-SLAPP legislation.

“In this case, the court concluded, at an early stage of the proceeding and on the limited record, that the defence of truth or justification weighed more heavily in favour of the defence being made out,” he said. “There was a fulsome record in this regard. Normally an allegation that someone is a racist would be considered a serious defamation which would carry with it a presumption of more than nominal damages.”

The Party leader’s defamation action against pundit unable to clear anti-SLAPP hurdle, judge rules was published by The Lawyer’s Daily on November 17, 2021.

 

Filed Under: Civil litigation, Defamation

$100K judgment in defamation suit called ‘cautionary tale’ for social media

November 23, 2021 by Patty Winsa

Two sisters simply want to “move on with their lives” after winning $100,000 in a defamation suit against a woman who redistributed a screenshot of a Snapchat video on social media that she alleged showed them mocking the death of George Floyd five days after he was murdered by Minneapolis police.

Justine Lavallee and Shania Lavallee, from the Ottawa area, were each awarded $50,000 in damages last month by Superior Court Justice Marc Smith, who said in his ruling that defendant Solit Isak used “hurtful and inappropriate language” to describe the sisters and that she was “relentless in her campaign” to have them fired.

Smith ruled the screenshot “did not set out the factual foundation that was required” to prove Isak’s accusations that the Lavallees were “racists.”

Isak’s lawyer Cedric Nahum said in an email that he disagrees with the court’s decision, in part, because “whether or not something is racist is a question of fact as opposed to a question of opinion.”

“People’s interpretations of an act as racist or not is subject to their own personal beliefs and biases,” he said.

It’s a “cautionary tale” about the dangers of social media, said Howard Winkler, who has practiced in the area of media and defamation law for more than 35 years.

“What you do on the internet can cause quick and serious harm,” says Winkler. “And that if you abuse, in a sense, the privilege of social media, that there will be consequences.”

The Lavelle sisters, who have openly argued the video had no connection to the Floyd case and was taken out of context, lost their jobs, their mother’s house was vandalized and their friends and family received death threats after Isak shared the screenshot and urged her followers to identify the people in it, according to the court decision.

Once their identities were known, Isak and others pressured their employers to fire them.

“This case highlights the capacity of social media to be weaponized to destructive effect,” said their lawyer Charles Daoust, who said the judgment vindicated “their reputations before the court” after a particularly “traumatic” year.

“As members of the Indigenous community, they have always been sensitive to situations of racism in our society,” wrote Daoust in an email. “However, the events of May 2020 did not, in any way, relate to racism. Now that the Court has ruled in their favour, Shania and Justine want to move on with their lives and put this matter behind them.”

The screenshot, from May 30, 2020, showed Justine play fighting with Gilmour Driscoll-Maurice, her sister’s boyfriend. He was holding Justine’s hands behind her back and his knee was in the middle of her back. Shania shared the video with a group of friends on Snapchat.

One of Shania’s followers sent a screenshot of the video to Isak, who posted it on Instagram and Twitter, inviting her followers to help identify the people in the photo and “denouncing the actions of Justine, Shania, and Gilmour, who she did not know, as racist,” according to the suit.

Floyd was murdered five days earlier when Minneapolis police officers arrested the 46-year-old man and pinned him facedown on the ground after a convenience store operator called 911, alleging Floyd had purchased cigarettes with a counterfeit bill.

The suit against Isak proceeded after Smith ruled the plaintiffs had satisfied the basis of a defamation case, which includes proving the statements are about them and that the comments have been published to a third party. Isak’s posts were viewed between 15,000 to 40,000 times, according to the judgment.

Another element is that the comments must also “tend to lower the plaintiff’s reputation in the eyes of a reasonable person.”

Nahum, Isak’s lawyer, disagreed that this case met that standard, arguing that any damage to the sisters’ reputation was due to “nothing other than the Plaintiffs inappropriate and insensitive actions.”

The “plaintiffs have maintained that their actions were criticized out of context,” said Nahum in his email to the Star. “This is where I disagree with them. I believe that everyone should understand that ‘the context’ in which one’s activities will be viewed is greater than one’s own isolated personal world view,” he said of the screenshot.

The judge however, said that Isak’s “posts are serious accusations of improper conduct. One of her post’s associates Justine and Shania to the Ku Klux Klan. Solit’s statements have engendered feelings of hatred, contempt, dislike, and hostility towards Justine and Shania.”

“A reasonable person reading Solit’s social media posts will easily tend to lower Justine and Shania’s reputation,” wrote Smith in his judgment. “Each of Solit’s posts are brief, but taken as a whole, the reasonable person would think and conclude that Justine and Shania are racists.”

Defamation cases also have a number of defences, including fair comment and justification. They are different than criminal cases, however, in that the onus is on the defendant, and not the prosecution, to prove what they said is true.

And to do that, there has to be some evidence that the comments, whether they are stated as facts or couched as opinion, are grounded in fact, according to two lawyers interviewed by the Star.

Nahum argued that Isak’s posts were fair comment because “the factual basis is clearly stated by the Defendant that the actions of the Plaintiff’s clearly resembles the brutal killing of George Floyd,” an argument he said was backed up by a later apology from Shania for posting the video.

In it, Shania said that she understood “the video could be taken out of context given the current situation and I now see how insensitive it is.” But she went on to say that her sister and Driscoll-Maurice were “play fighting as they always do.”

Nahum argued that the apology, together with the subsequent firings, helped prove justification.

According to a letter from the Canadian Border Services Agency submitted as part of the case, the agency fired Justine, stating that “Regardless of Ms. Lavallee’s intentions, a reasonable individual would have recognized that posting such a video at this time would demonstrate a severe lack of judgment.”

“She also advertised on social media her employment with the CBSA,” according to the letter. “As such, the matter had harmed the CBSA’s reputation to the point where her casual employment with the CBSA was untenable.”

Shania’s employer, Boston Pizza, fired her stating in part that regardless of intent, “Ms. Lavallee’s social media activities caused harm to Boston Pizza’s brand and reputation.”

The Star wrote about the incident after confirming that Shania was fired from her job.

The Ottawa Catholic District School Board rescinded its letter of employment to Shania, stating that the video, “taken out of context may have racial connotations.”

The board went on to say that the “inappropriate social media posts attributed to you are not consistent with our values as a Catholic School Board.”

But the judge ruled that Isak didn’t have enough to prove her case.

Two people who watched the video said the words “police brutality” were never said in the video, as claimed by Isak. And two teachers provided Shania with “glowing letters of recommendation” in the defamation case.

“In this particular case, there were no underlying facts,” said Winkler, explaining the judge’s decision for the plaintiffs. “They were simply expressions or statements of fact without the underlying basis for the comment.

“In order to be entitled to express a comment, and the law provides … a broad range of comment that’s permitted, you have to, within the comment, provide the underlying facts which you can prove to be true upon which the comment is based,” said Winkler. “Or the facts have to be so notoriously known, that you don’t have to state them.”

According to the judgment, the facts have to be sufficient so that “readers can make up their own minds on the merits.”

If the defendant had been able to view the entire video, or had reached out to the Lavallee sisters for comment, Winkler says “either of these steps would have provided a proper context upon which the comment could then have been made (or perhaps would never have been made in the first place) and people could then make up their own minds about whether the comment had merit.”

Both sisters alleged in the suit that their “lives were ruined overnight because of Solit’s actions. Their reputations have been annihilated and they suffered deep humiliation and shame, as well as severe terror and anxiety.”

Winkler says that anecdotally these types of defamation suits are on the rise.

“Social media and the internet has opened up sort of mass and broad communication to everyone without the same checks and balances” as traditional media, said Winkler. “And great harm can be done because of it.”

Originally published by Toronto Star on  November 17, 2021

Filed Under: Defamation

Canada should follow Australia’s lead in battle against Google and Facebook

October 28, 2021 by Howard Winkler

The reaction by Facebook to the consequences of a recent Australian court decision making social media platforms responsible for third-party comments shows how online defamatory content can be controlled. So why isn’t Canada doing the same thing?

Early in September, Australia’s high court ruled that online publishers such as Twitter, Google and Facebook were legally responsible for the comments added to their posts, even if the stories themselves were factual and accurate.

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, and offered to help CNN disable comments on posts one-by-one. Not satisfied, CNN responded by disabling its Facebook pages in Australia, forcing the social media giant to give in to CNN’s demands for a blanket disable feature in that country.

This is just the latest example of many where Google and Facebook have blinked in the face of external pressure. In February, 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 into negotiations for the payment of royalties for their use of others’ content.

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.

These are all positive developments in the fight against misinformation and false and defamatory content. The pressure being applied to online platforms through court decisions and the threat of legislation forced social media platforms to self-regulate themselves in Australia, even though the outrageous nature of the comments leads to traffic and revenue.

Interestingly, a news story on the issue states a Facebook spokesperson has said the controversy shows “how Australian defamation laws needed to be reformed.”

I think they have it quite backwards. Instead, I think it is Facebook that needs to reform itself to prevent harm its platform is causing. The Australians are proving that such reform is possible.

An Australian court decision which recently ruled that online social media platforms are “publishers” of comments made by third parties — contained this insightful comment:

“The [media companies] chose to operate public Facebook pages in order to engage commercially with that significant segment of the population,” it reads. “[Their] attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”

This statement is absolutely correct.

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 real 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, but only Australia seems to have addressed it.

I cannot understand why Canada is not following suit, though admittedly these issues have not yet come before our courts. Still, the Trudeau government has threatened to control social media platforms, but they’ve really done nothing of substance to deliver on that. Maybe there is a reluctance to take on these powerful platforms, which are richer than some of the countries in which they operate.

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

Instead, what we’re dealing with in most of these cases is low-value speech. It is either misinformation or anonymous defamatory content, which is not nearly as important as the right to protect one’s reputation.

I hope Canada joins Australia in efforts to force online platforms to take responsibility for all the content on their sites. After all, much of the world relies on Facebook for the dissemination of information. Because of that, Mark Zuckerberg and others have to be held to account for the defamatory and harmful comments that their sites allow anonymous users to freely post.

Originally published by Toronto Star on  October 26, 2021

Filed Under: Defamation

Court ruling a small step in closing Google’s ’gateway to harm’

October 6, 2021 by Howard Winkler


By Paul Russell, LegalMatters Staff •
 A recent Federal Court decision has brought Google one step closer to being held accountable for the defamatory material it links to on the internet, though there is a simpler way the same result could be achieved, says Toronto defamation lawyer Howard Winkler.

“I still don’t think we’re at a point where there is an efficient, effective remedy available to people who have been defamed through the services of Google, whether it be through search results, snippets or libellous content that it republishes,” says Winkler, principal and founder of Winkler Law.

“But we’re heading in the right direction, and the courts seem to be following a path which may eventually achieve that result,” he tells LegalMattersCanada.ca.

Winkler points to a July judgment of the Federal Court, which relates to a man’s claim that “news articles Google displays in its search results contain outdated and inaccurate information and they disclose sensitive information … [and] the fact that Google prominently links these articles to his name in search results has caused, and continues to cause him, direct harm, including physical assault, lost employment opportunities and severe social stigma.”

Defamatory links given when name searched

At the suggestion of Daniel Therrien, Canada’s Privacy Commissioner, the man requested that Google remove the defamatory links that are given when people search for his name “but Google declined to do so,” the judgment reads.

Court documents note that in “January 2018, the Commissioner published a Draft Position Paper on Online Reputation expressing the view that, in certain circumstances, PIPEDA [the Personal Information Protection and Electronic Documents Act] applies to search engines like Google. A consequence of PIPEDA’s application would be that Google might be required to remove links to content containing personal information.”

To aid in his investigation of the man’s complaint, the commissioner asked the Federal Court to rule on two key points:

  • Does Google collect, use or disclose personal information in the course of commercial activities within the meaning of PIPEDA when it indexes web pages and presents search results in response to searches of an individual’s name?
  • Is the operation of Google’s search engine service excluded from the application of PIPEDA because it involves the collection and use of personal information for “journalistic, artistic or literary purposes and for no other purpose?”

“Respectively, the court responded with a yes and no to those questions,” says Winkler. “This decision won’t solve the problem of online defamation by itself, but it’s one more piece of the puzzle.”

 Jurisdiction to consider the complaint

He explains the court’s decision simply gives the privacy commissioner jurisdiction to now consider the complaint against Google.

“We will have to wait for the investigation of the complaint and the ultimate decision to see what remedies Mr. Therrien thinks he has available to him and specifically whether he can make an order that Google delist certain search results which are found to be false and by extension, harmful and defamatory,” says Winkler.

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It’s also unclear whether Google will appeal this decision, he says, adding “it would be surprising if it doesn’t, but perhaps it is just intending to wait to defend the complaint and hope to succeed on the merits.”

Winkler says he hopes that as a result of this decision and other pressure Google will feel compelled to voluntarily alter its business model, to “better balance freedom of expression and the right of one to protect their reputation.”

Google is the ‘gateway to harm’’

“Right now, Google is at the far extreme of freedom of expression, without any respect or regard for the protection of reputation,” he says. “That is why I describe Google as being the gateway to harm.”

Winkler notes that both the courts and Canadian legislatures are trying to address online defamation, but reform has been slow.

“This is the first court case, from a privacy perspective, aimed at remedying the harm created by Google,” he says. “Its current policies allow for unfair harm to a person’s reputation, which can be immediate and devastating.”

Winkler points out the plaintiff started legal action in 2017 and is still waiting for some tangible results.

“With the current delays in the privacy commissioner’s investigations and its lack of remedial powers, the harm is done and likely permanent for the complainant,” he says.

‘Google can’t suck and blow’

Winkler says Google has taken contrary positions when it comes to defamation and privacy. He explains that when it comes to defamation, “Google argues that it is not a publisher and therefore not liable for the content its search engine promotes. However, in the privacy context, in order to be exempt from the provisions of the Privacy Act, it argues that it is involved in an act of journalism.

“Although the concepts of being a publisher and journalism might be different, they are close enough,” says Winkler. “Google can’t suck and blow. It can’t say for the law of defamation that it is not a publisher, and then say for the law of privacy that it is involved in a journalistic endeavour.”

In answering the second question posed by the privacy commissioner, the Federal Court judgment notes: “The primary purpose of Google’s search engine service is to index and present search results. This is not a primarily journalistic purpose because although it may facilitate access to information, it contains no other defining feature of journalism, such as content control or content creation. Even though Google returns some journalism in its search results, its search results clearly extend beyond journalism.

“In sum, Google’s search engine service does not operate for a journalistic purpose at all, or at least it does not operate for an exclusively journalistic purpose,” the ruling states.

Ruling has left the door open

“This ruling has left a door open,” says Winkler. “While Google was found not to operate for a journalistic purpose for the purposes of privacy legislation, it could be a publisher in other respects.

Instead of relying on the courts for a remedy to online defamation, he says the provincial government should, as a first and important step, simply adopt the takedown provisions recommended by the Law Commission of Ontario in its 2020 report, Defamation in the Internet Age.

Under this system, if an alleged fake or defamatory review of or post concerning a person or a firm is posted, the slighted party can electronically advise Google of their objection, he says. Google would then inform the original poster of the objection, and give them a set and short period of time to respond. If they fail to respond the post is taken down. This would quickly remove low value speech from the Internet.

Google conducts ‘70-75% of all internet searches’

Winkler says he is pleased that Google was specifically targeted in this case, considering its dominance among search engines. As noted by the judgment, some estimates suggest “it is used to conduct 70-75% of all internet searches globally. According to Google, its search engine is used to conduct millions of searches each day … Google’s parent company reported that it earned approximately $63.5 billion (USD) from Google in the first half of 2018 alone.”

“Any ruling against Google would apply equally to other search engines,” says Winkler. “Google obviously is the right precedent case. Its dominance in controlling access to content on the Internet is why I call Google a gateway to harm. What people are complaining about, in terms of false and defamatory material, is only happening because Google is making this false and defamatory information available and refusing to take it down when notified about it.

“What’s important about this case is that in the absence of legislation, which exists in the European Union, this is potentially the start of a Canadian right to be forgotten,” he adds. “And the real question is why do we need to wait for the slow process of a privacy commissioner’s investigation and decision when the government could simply enact legislation it deems is in the best interests of all?”

Originally published by LegalMatterscanada.ca on August 30, 2021

Filed Under: Defamation

Google must do more to combat defamatory online reviews

July 5, 2021 by Paul Russell

Google has facilitated and profited from the proliferation of fake and defamatory online reviews about people and businesses so it is reasonable to expect the search engine giant to make greater efforts to remove those posts, says Toronto defamation lawyer Howard Winkler.

According to a CBC news report, Google is taking steps to address “a growing black market in which some companies pay for fake positive reviews, while others are seemingly being extorted by web firms who post negative comments then propose their ‘review-fixing’ services to get them taken down.”

The story adds that a portion of one fake review network showed that 1,279 businesses across North America were subjected to 3,574 fake reviews.

A story in The New York Times states that Google plans to change its search algorithm to prevent websites from appearing in the list of results when someone searches for a person’s name, and to target “websites that charged people to remove slanderous content.”

The Times adds that Google also recently “created a new concept it calls ‘known victims.’ When people report to the company that they have been attacked on sites that charge to remove posts … ‘known victims’ also includes people whose nude photos have been published online without their consent, allowing them to request suppression of explicit results for their names.”

‘Google can tackle these problems’

“The bottom line is Google can tackle these problems,” says Winkler, principal and founder of Winkler Law. “It is their platform that is facilitating the hateful and harmful speech, so I do not think it’s unreasonable to impose an obligation on Google to address the problem it has helped to create.”

He notes there are various ways justice can be attained in Western societies.

“It can come from the courts,” Winkler says. “Unfortunately, there has been no jurisprudence in Ontario that relates to the question of Google’s liability for hosting and republishing defamatory material.”

If such liability were found, he says that would be a strong motivation for Google to change the way it operates.

Winkler says another way to achieve justice is through legislative reform.

“That has been slow in Canada, as only now is the federal government making moves to amend the human rights code to include a new definition of hate and related offences,” he says. “Subject to how it gets interpreted, it will be relatively restricted in its application and not broad enough to capture the problem of fake and defamatory reviews online.” “The provincial government has also been slow to adopt legislative reform that could help.”

Media exposure brings change

Another route to justice, and seemingly the most effective, is through media exposure, Winkler says, which is now prompting Google to address the marketing of false and fake reviews by firms that then want money to remove them.

“Google seems to be willing to attempt to address that specific problem,” he says. “That’s great. But how about the proliferation of damaging fake and defamatory reviews that aren’t necessarily posted as part of a money-making scheme? Google also has the ability to address this problem. It just needs to be motivated to act.”

Winkler recommends that Google implement the kind of takedown system recommended by the Law Commission of Ontario in its 2020 report, Defamation in the Internet Age, since it can be “done electronically without really any human intervention.”

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Under this system, if an alleged fake or defamatory review of a person or a firm is posted, the slighted party can electronically advise Google of their objection to the post, he says.

“Google would then inform the original poster of the objection, electronically and without any human intervention, and give them a set and short period of time to respond,” Winkler explains.

“The short period of time given for them to respond is due to the fact that the damage done by a fake review can be so immediate and devastating,” he says. “If there is no response, then the post is automatically taken down.”

“I suspect that most of these fake and defamatory reviews will not be defended by the original publisher and can then be taken down” Winkler adds.

An easy way to reduce low-value speech online

If the original publisher says they disagree with the objection, the posting will stay up, he says, and the person making the objection will be left to pursue legal action.

Winkler says this solution offers various benefits.

“This approach will help reduce low-value speech online, which no one is prepared to defend,” he says. “It is anonymous speech, it is fake speech. It is defamatory speech. If the original publisher chooses not to defend it, it should come down.”

Another benefit is that users’ anonymity is protected, Winkler says.

“This solution does not require the disclosure of the publisher’s identity,” he says. “All they have to say is, ‘I want it left up,’ and the chips can then fall where they may.

“The bottom line is that currently we have a situation where the courts have not been effective in addressing these fake and defamatory postings,” Winkler adds. “Federal and provincial governments have either failed to act or have not done enough. So thankfully, the media is motivating Google into action. Now we just need them to be pushed further.”

Originally published by LegalMatterscanada.ca on  July 5, 2021

Filed Under: Defamation, Social Media

Judge failed to consider ‘chilling effect’ of dismissing defamation case, B.C. Court of Appeal says

June 26, 2021 by Ian Burns

A defamation lawsuit brought by a B.C. school trustee against the former president of the province’s teachers union is going ahead after the provincial Court of Appeal said a dismissal of the action could have a “potential chilling effect” on future expression in matters of public interest.

Barry Neufeld, a trustee with the Chilliwack Board of Education, made negative comments about the way a provincial program designed to teach children about sexual orientation and gender identity was being implemented in schools, writing on Facebook that the program’s teaching that gender is a social construct was “biologically absurd.” In response, then-B.C. Teachers’ Federation president Glen Hansman said Neufeld’s comments “tiptoed quite far into hate speech” and the trustee was creating a school environment which was both discriminatory and hateful.

But Justice Lauri Ann Fenlon, writing for a unanimous Court of Appeal, ruled the lower court erred in its interpretation and application of the PPPA. She wrote Neufeld’s claim deserves a trial on its merits and should not have been summarily screened out at such an early stage and the lower court judge failed to consider the “potential chilling effect” on future expression in matters of public interest by dismissing the case (Neufeld v. Hansman 2021 BCCA 222).

“The risk of being tarred with negative labels (and corresponding self-censorship) is most pronounced for people who hold contentious opinions on hotly debated topics,” she wrote. “Defamatory comments that accuse someone of committing hate speech can inflict serious reputational harm. The judge’s error was in failing to consider the collateral effect that preventing Mr. Neufeld from defending himself from such serious accusations could have on other individual’s [sic] willingness to express themselves on issues of public interest in future.”

As part of his case, Neufeld brought up 11 specific publications in which Hansman allegedly made defamatory remarks. Justice Fenlon wrote that the defence of fair comment must be considered for each of them.

“In my view, the [lower court] judge’s failure to consider the specific expressions led him to overlook the constituent elements of the fair comment defence as applied to each expression,” she wrote. “The comment must also explicitly or implicitly indicate, at least in general terms, the facts on which the comment is based. The facts must be sufficiently stated or otherwise known to listeners so that they are able to make up their own minds on the merit of the comments and opinions expressed.”

Lawyer Paul Jaffe
Lawyer Paul Jaffe

Paul Jaffe, who represented Neufeld, said his client anticipated a hostile response and “sure enough that happened,” subject not only to Hansman’s comments but also human rights complaints and “a campaign of vilification to have him de-platformed.” And by using the anti-SLAPP legislation against his client, Jaffe said Hansman was using it to achieve the very purpose it was designed to prevent.

“It is a pretty onerous task for plaintiffs in defamation actions to get to court, and the legislation is supposed to be a screening device to weed out cases which are unmeritorious or are being used to punish critics,” he said. “And it is absolutely laughable to suggest a solitary school trustee in Chilliwack constitutes a threat to the freedom of expression of the president of one of the most powerful public sector unions around.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, said anti-SLAPP legislation was originally intended to be a summary screening process “and it has become anything but.”

“I fear the legislation is losing its effectiveness, and this decision is one example of the kind of rigour the courts seem to be requiring of motion judges, which is going to make the cost of bringing these motions prohibitive,” he said. “When you are asking a motion judge to make a summary decision in an early stage of a proceeding and then you put it under the microscope of the complexities of the law of defamation, many of these decisions are ripe for appeal.”

Neufeld’s action is a “big freedom of expression issue,” said Jaffe.

“It is in the context of a defamation claim, but if you don’t recognize the importance of defamation law in protecting free speech then you’ve got a problem,” he said. “And the judge below saw it as a contest between defamation law and free speech and failed to recognize that defamation law protects free speech.”

Jaffe said he is trying to set a trial date for February next year. Counsel for Glen Hansman did not respond to a request for comment.

The Judge failed to consider ‘chilling effect’ of dismissing defamation case, B.C. Court of Appeal says was published by The Lawyer’s Daily on June 25, 2021.

 

Filed Under: Civil litigation, Defamation

Trump ex-lawyer’s defamation defence may not be so ridiculous

April 14, 2021 by Paul Russell, LegalMatters Staff

The news media has mischaracterized the legal arguments put forward by a former lawyer for Donald Trump as she attempts to have a billion-dollar defamation lawsuit against her dismissed, says Toronto defamation lawyer Howard Winkler.

It is alleged that Sidney Powell stated on television and in legal briefs that “Dominion machines ran on technology that could switch votes away from Trump, technology she said had been invented in Venezuela to help steal elections for the late Hugo Chávez.”

She is currently seeking the summary dismissal of the claim against her by Dominion Voting Systems.

“The news coverage of the motion by Powell to dismiss the claim has been inflammatory, misconstruing the legal grounds her dismissal motion is based on, says Winkler, principal and founder of Winkler Law.

As an example, he points to an article in The Guardian, headlined, “Pro-Trump lawyer says ‘no reasonable person’ would believe her election lies.”

“This headline is misleading and is likely to be interpreted as meaning that Powell is admitting that no reasonable person would take her voter fraud claims to be true,” Winkler says. “That is not the premise of her dismissal motion, though most of the media seems to have seized on that incorrect interpretation.

“In fact, what Powell argues is that ‘no reasonable person’ would conclude that her allegations were statements of fact, but rather they were understood as statements of her opinion,” he explains.

Not a defence by ‘reputational suicide’

“Most coverage on this issue seems to suggest she is relying on a defence built around the idea that since she has so little credibility, nobody would believe what she is saying is true and therefore her statements are not defamatory,” Winkler adds. “In essence, this would be a defence of self-inflicted reputational suicide. But that is not a correct interpretation of her motion.”

Quoting from her legal documents, the article states: “It was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern.”

That is the pleading of the well-recognized defence of fair comment within the law of defamation, says Winkler, adding that Powell also has the benefit of the First Amendment of the U.S. Constitution, guaranteeing her right to freedom of speech.

“Under these circumstances, in order for there to be liability for publication of defamatory opinions, Dominion is going to have to demonstrate, among other things, actual malice, meaning that she knew the statements she was making were false or that she was reckless about their truth or falsity,” he says.

Legal factors in her favour

Another factor in Powell’s favour is that the statements made in court filings about Dominion were consistent with her public allegations of voter fraud, says Winkler. “The law of defamation provides protection for statements made in the course of the litigation process.”

He adds, “the real battle is going to be whether Powell can ground her opinions on underlying facts which can be proven to be true; and the issue of malice, which gets into a question of her state of mind.”

Winkler predicts that Powell’s motion to dismiss the defamation lawsuit will fail, but not for the reasons most media outlets are reporting.

“I don’t think she stands a chance on the motion because of the issue of malice. That likely needs to be determined at trial, and not through a summary motion,” he explains. “While I don’t think she will be successful on her motion, the media has been unfairly reporting the legitimate nature of the motion which she has brought.”

Trump supported her statements

The Guardian article says Powell’s claims about Dominion voting machines originated in a comment on a pro-Trump blog.

“They would be amplified on a global scale by Trump himself in a 12 November tweet in which he wrote in part “REPORT: DOMINION DELETED 2.7 MILLION TRUMP VOTES NATIONWIDE,” the article states.

It adds that the former president reportedly supported Powell’s claims in private and trumpeted them in public, touting Powell two weeks after the election as a key part of “the legal effort to defend OUR RIGHT to FREE and FAIR ELECTIONS.”

Many Washington insiders expressed disbelief in Powell’s statements. “This is her defense. Wow,” tweeted the Republican representative Adam Kinzinger.

“Bad argument!” added Trump’s former lawyer Michael Cohen in a Tweet. “[Powell] should have gone with an insanity defense due to #TrumpDerangementSyndrome.”

Winkler says those comments further confirm how the legal principles behind her dismissal motion are being misconstrued.

Lawsuit tests free speech in campaigns

Provided that Powell’s dismissal motion fails, he says he will be interested to see how Dominion’s US$1.3-billion defamation lawsuit plays out.

“In both the United States and Canada, there is not a lot of litigation concerning false statements made in the course of a political campaign,” Winkler says. “Those cases almost never make it to trial. They are usually brought and then abandoned or settled for political purposes.”

He says the Dominion lawsuit again Powell could help to define the limits of free speech during political campaigns.”

“While there is greater protection of free speech in the United States, it’s curious there hasn’t been more of the same litigation in Canada arising from false statements made during election campaigns,” Winkler says.

Dominion Voting Systems was founded in Canada in 2002 and has headquarters in Toronto as well as Denver. According to the firm’s website, “Multiple U.S. government agencies and election customers across 28 states have conclusively affirmed that no voting system deleted, lost, or changed votes in the 2020 election.”

Originally published by LegalMatterscanada.ca on  April 13, 2021

Filed Under: Civil litigation, Defamation

Common law tort of Internet harassment should be recognized in Ontario: judge

February 9, 2021 by Ian Burns

An Ontario Superior Court judge has concluded that a common law tort of Internet harassment should be recognized in the province as part of a decision which found a woman had engaged in “extraordinary campaigns of malicious harassment and defamation” online which was “carried out unchecked, for many years, as unlawful acts of reprisal.”

The decision in Caplan v. Atas 2021 ONSC 670 involves four separate cases brought by over 40 plaintiffs against Nadire Atas for the posts which she placed online on sites such as Reddit and Facebook, which for the most part do not monitor or control the content of postings. She largely posted anonymously or using pseudonyms, and Justice David Corbett wrote she “has carried on systematic campaigns of malicious falsehood to cause emotional and psychological harm to persons against whom she has grievances.”

“These include adverse parties in litigation, Atas’ own lawyers, and the lawyers and agents, relatives (including siblings, spouses and children) of these people, a former employer, its successor, owners, managers and employees of this former employer, and generally an ever-widening circle of victims, generally chosen to cause misery to Atas’ prime victims, those against whom she harbours festering grievances,” he wrote in his Jan. 28 decision. “As of the time that these motions were argued [in 2019], there have been as many as 150 victims of Atas’ attacks.”

The posts were traced to Atas after a long campaign by many of the plaintiffs. Atas, who was self-represented in the case, has been deemed a vexatious litigant and was cited for contempt of court as the case against her unfolded. According to court documents, she admitted to having authored some of the posts but denied she was responsible for the majority of them. She also argued the defamation claims were barred by the notice requirements under the provincial Libel and Slander Act and the court had shown bias against her, but these arguments were rejected.

Justice Corbett noted courts can order a defendant to remove offensive content on the Internet but such an order would not be effective in the case, as Atas has shown that she will not follow court orders, has posted on sites that have policies of not removing content on request and is destitute after filing for bankruptcy.

“[But] the court itself has an interest in seeing the overall conflict brought to an end,” he wrote. “The alternative order proposed by the plaintiffs … vesting title to the postings in them, with ancillary orders enabling them to take steps to have the content removed, will be more effective for them.”

And Justice Corbett concluded that a common law tort of Internet harassment should be recognized in Ontario “because Atas’ online conduct and publications seek not so much to defame the victims but to harass them.” He noted the Ontario Court of Appeal recently overturned a lower court ruling which recognized a common law tort of harassment (Merrifield v. Canada (Attorney General) 2019 ONCA 205), but “the facts of the case before me are very different.”

“The intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery,” he wrote. “The law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct.”

Plaintiff counsel Gary Caplan said he could not comment on the specifics of the case due to ongoing litigation against Atas, but said the decision’s importance was “timely in the sense there has been a lot of recent media attention brought to bear on the problems occasioned by either Internet harassment or Internet defamation.” Caplan’s brother and two sons-in-law were among the plaintiffs in the case after being targeted by Atas.

“How to deal with Internet harassment and defamation is a very big question and I am not sure there is a right answer,” he said. “One of the very obvious issues is what do you do with posters or people who access the Internet anonymously using aliases or fake names, and in terms of court process one of the challenges is trying to have the evidence necessary to show who is behind it.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, said it is an “extreme example of the kind of harm that can be done on the Internet by one person.”

“And as egregious as the facts are in this particular case, this kind of situation plays out every day on Facebook, Google, Twitter and other social media platforms where the lives and businesses of ordinary people are ruined by this kind of conduct,” he said.

Although the plaintiffs were able to achieve significant remedies against Atas, Winkler said the case doesn’t really deal with the central problem of online harassment and defamation — the fact that the social media platforms allow the material to be posted and largely refuse to do anything about it when complaints are raised. He said the Ontario government should adopt a recommendation made by the Law Commission of Ontario (LCO) in its 2020 report on defamation law in the Internet age to bring in legislation which allows for notice provisions of defamatory content to be passed on to social media platforms, and it imposes an obligation on them to take down the content if there is no response to the notice.

“If the province enacted that, and if they did it while recognizing this new tort of Internet harassment, then there would be a recourse available to ordinary people in situations like this,” he said. “Without that platform and that megaphone for speech, then the kind of conduct and behaviour that Ms. Atas engaged in would have been silenced. It was only when these social media platforms refuse to respond in a way that provides a proper remedy that the court has found it necessary to intervene.”

The Common law tort of Internet harassment should be recognized in Ontario: judge was published by The Lawyer’s Daily on February 8, 2021.

 

Filed Under: Defamation

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Howard Winkler

Certified Specialist in Civil Litigation by the Law Society of Ontario

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