Defamation

Trudeau’s gift to Google

October 29, 2018 by Howard Winkler

With little fanfare or consultation, the Trudeau government with its commitment to the USMCA proposes to significantly alter the existing common law in Canada related to the law of defamation. The winners are Google, Facebook and other services that facilitate the communication of online information. The loser is the common law protection of reputation and victims of anonymous false and defamatory online statements, such as untraceable comments on rate-my-professional types of sites or Google business reviews.

This should be of particular concern to all Ontario lawyers whose reputations are so important and so easily destroyed, as well as to their clients, whose livelihood often depends on their online presence.

The importance of the right to protect one’s reputation cannot be understated. As the Supreme Court of Canada noted in Hill v. Scientology, “to most people, their good reputation is to be cherished above all.

“A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws,” said the ruling.

For generations, common law countries, Canadian courts and provincial legislators have grappled with the fine balance between the competing interests of the constitutionally protected right to freedom of expression and the quasi-constitutional right to the protection of one’s reputation.

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

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

Some say this provision is a victory for freedom of expression. I disagree. I believe that this is one more nail in the coffin of the right to protect one’s reputation from the proliferation of anonymous, false and defamatory content published on the internet and made readily available by search engines such as Google.

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

Consider this not uncommon occurrence: With the encouragement of the business review facility provided by Google, individuals with anonymity can post a fake, false and defamatory review of a business or its services. Anonymity can be achieved through the use of a fake name from a public terminal, such as at a public library or from a jurisdiction outside the reach of Canadian courts. This includes, by the way, the United States.

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

In contrast to the proposed USMCA provision, countries such as Australia are leading the way among common-law jurisdictions in imposing liability on service providers as secondary publishers of defamatory material once given notice of the defamatory nature of the content they are publishing.

In the case of Duffy v. Google [2017] SASCFC 130, the Supreme Court of South Australia ruled that, once on notice, Google must either remove the material or face liability as a secondary publisher. In Duffy, snippets contained in search results of Dr. Janice Duffy’s name suggested that she was a stalker, which the court found to be defamatory. Duffy complained to Google, but they refused to remove the material. The court awarded general damages against Google in the amount of AUD$115,000 (approximately $106,000) for loss of reputation and hurt feelings. The award was upheld on appeal.

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

In my view, the common law approach makes perfect sense and imposes an appropriate degree of responsibility on providers such as Google, once put on notice, to exercise some control over the content they encourage and facilitate.

There is no reason to believe, absent the USMCA, that Ontario courts would not follow the same common law principles.

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

The provinces should take heed and not be unwilling participants in such an ill-conceived provision. It is ultimately up to our provincial legislators and courts to modify the fine balance between freedom of expression and the protection of one’s reputation. The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump.

While Trudeau may have intentionally or unwittingly given Google an early holiday gift, one can only hope that, with the passage of time, it amounts to nothing more than a lump of coal.

Originally published by Law Times on October 29, 2018.

Australian courts lead the way in fighting online defamation: Winkler

October 3, 2018 by AdvocateDaily.com Staff

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

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

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

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

Read the full article on AdvocateDaily.com.

Vital to pick right forum for multi-jurisdictional defamation cases

July 13, 2018 by AdvocateDaily.com Staff

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

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

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

Read the full article on AdvocateDaily.com.

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

June 27, 2018 by AdvocateDaily.com Staff

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

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

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

Read the full article on AdvocateDaily.com.

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

June 14, 2018 by AdvocateDaily.com Staff

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

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

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

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

Read the full article on AdvocateDaily.com.

Winkler backs Brown’s effort to ‘expose the truth’ in new book

May 23, 2018 by AdvocateDaily.com Staff

Toronto lawyer and mediator Howard Winkler tells the Globe and Mail he supports former provincial Progressive Conservative leader Patrick Brown’s plan to set the record straight in a new book about his ‘sensational political assassination.”

…

“I support Mr. Brown’s initiative, especially in light of the fact that the legal system does not provide the kind of timely disclosure of the truth that can be achieved through his proposed book,” Winkler says, adding he expects the book will be reviewed prior to publication to ensure the content can be defended.

Read the full article on AdvocateDaily.com.

‘Unprecedented’ damages sought in historic defamation case: Winkler

April 27, 2018 by AdvocateDaily.com Staff

Toronto lawyer and mediator Howard Winkler tells various news outlets that in his view CTV’s reporting on former provincial conservative Leader Patrick Brown represents the “most egregious” defamation in Canadian history. See Global News, Sun Media, Toronto Star, Yahoo News

Brown has launched an $8-million action against CTV, claiming the broadcaster defamed him by airing a news report detailing allegations of sexual misconduct by two women. Brown denied the claims but was forced to resign his leadership of the Ontario Progressive Conservative party.

“Regrettably, it is unlikely that the harm done by CTV will ever be fully repaired,” Winkler told Global News.

Read the full article on AdvocateDaily.com.

Lawyer for Bloc Quebecois leader serves TV network and panel with legal warning

April 4, 2018 by AdvocateDaily.com Staff

QUEBEC — A lawyer for Bloc Quebecois Leader Martine Ouellet has sent a legal warning to a TV network in Quebec and the panelists of a political talk show for recent remarks about her.

Guy Bertrand says Ouellet is taking issue with comments made on “La Joute” on March 8 and he argues they constitute an attack on her reputation…

In an interview with AdvocateDaily.com, Toronto litigator and mediator Howard Winkler says that in order to succeed in an action involving the kinds of comments in question, Ouellet would have to demonstrate either that there was specific malice on the part of the panelists she has threatened to sue or that they fundamentally mischaracterized her position on the issue of a referendum question.

“To attack someone’s ideas or positions, especially in the context of the policies of a provincial political party is not, in my view, an attack on Ms. Ouellets’ reputation,” says Winkler, principal and founder of Winkler Dispute Resolution.

Read the full article on AdvocateDaily.com.

Premier’s anti-SLAPP law could kill her defamation suit

December 28, 2017 by AdvocateDaily.com Staff

Ontario Premier Kathleen Wynne’s defamation action against opposition leader Patrick Brown may fall foul of her own government’s anti-SLAPP legislation, Toronto litigator and mediator Howard Winkler tells AdvocateDaily.com.

Wynne followed through on a threat to sue Brown following a dispute over comments he made when the premier was scheduled to appear as a witness at a trial of two members of her party in Sudbury, Ont., involving allegations of bribery under the Election Act.

Brown refused to apologize for comments that suggested Wynne herself was on trial, rather than testifying as a witness, and denied his statements were defamatory.

Winkler, a defamation lawyer with over 30 years of experience, and principal of Winkler Dispute Resolution, says he doubts the case will ever get to trial, noting that it reminds him of a suit launched by Wynne against Brown’s predecessor, which eventually settled out of court…

Read the full article on AdvocateDaily.com.

Honesty, careful language key when posting online review

November 10, 2017 by AdvocateDaily.com Staff

While the law does protect the right of Ontario consumers to post negative reviews written in “good faith,” commenters do still run the risk of being tied up in expensive litigation, Toronto litigator and mediator Howard Winkler told The Larry Fedoruk Show on Newstalk 610 CKTV.

Winkler, principal and founder of Winkler Dispute Resolution, told listeners that as long as individuals who choose to post a negative review of a person or business are acting in good faith and honestly, the defence known as ‘fair comment’ has always existed in Ontario law and “is something that an individual could rely on if they post a review which is then the subject of litigation.”

Options available for businesses dealing with defamatory reviews

October 30, 2017 by AdvocateDaily.com Staff

By AdvocateDaily.com Staff

False reviews on Google can seriously affect the hard-earned reputations and bottom lines of some businesses — but there are strategies companies can use when faced with this situation, Toronto litigator and mediator Howard Winkler and Eryn Pond write in The Lawyer’s Daily.

As Winkler, principal and founder of Winkler Dispute Resolution, and Pond, a lawyer with the firm, explain, some reviewers use fake names and/or post reviews that are false and defamatory. Sometimes the reviews are posted by competitors or disgruntled employees.

In addition, they say, Google may be unco-operative in removing these reviews, as it takes the position that it merely hosts third-party content and is not its creator or moderator.
Read more …

False and defamatory Google business reviews? Maybe it’s time to take action

October 19, 2017 by Howard Winkler and Eryn Pond

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

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

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

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

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

First, some non-litigious suggestions

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

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

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

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

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

Take the litigation route

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

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

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

Suing Google as a co-publisher

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

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

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

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

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

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

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