Winkler Dispute Resolution

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

Defamation

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

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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of the Federal Court, which relates to a man’s claim that “news articles Google displays in its search results contain outdated and inaccurate information and they disclose sensitive information … [and] the fact that Google prominently links these articles to his name in search results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.

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

Google must do more to combat defamatory online reviews

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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.”

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

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

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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.

 

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

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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

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

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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.

 

Case could set precedent in determining social media giants’ liability for defamation: legal expert

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A B.C. court has given the green light to a defamation action against social media giant Twitter, with a legal expert saying the case has the potential to settle a major unresolved issue in Canada — what is the liability of social media companies for comments users post online.

Frank Giustra, the B.C.-based founder of entertainment company Lionsgate, brought a defamation action against Twitter for comments made about him online concerning his relationship with Bill Clinton and the Clinton Foundation, the former U.S. president’s charity. He was targeted by online trolls who connected him to the debunked “pizzagate” conspiracy theory concerning a supposed Satan-worshipping pedophile ring consisting of many high-profile individuals from around the world. Posters also made comments about his involvement with the Boys Club Network charity, of which he is a founding patron.

Twitter asked the action to be dismissed, arguing California was a more suitable venue for any complaint against the San Francisco-based company. But Twitter would have no liability in the United States due to the freedom of speech provisions in the First Amendment to the U.S. Constitution and s. 230 of the Communications Decency Act of 1996, which gives Internet platforms immunity for tort claims arising from the dissemination of content by third-party users.

But B.C. Supreme Court Justice Elliott Myers sided with Giustra, writing the court does have jurisdiction due to the billionaire’s close ties to the province and the fact that many tweets referred to B.C. and were published there (Giustra v. Twitter, Inc. 2021 BCSC 54).

“The presumption is that a defendant should be sued in only one jurisdiction for an alleged wrong, but that is not a simple goal to achieve fairly for Internet defamation,” he wrote in his Jan. 14 decision. “[Giustra] has gone far enough in demonstrating damage to his reputation here. I do not agree with Twitter, who argues that of all places in the world, the plaintiff’s reputation has not been harmed in B.C.”

In an online post, Giustra said that he believed “words do matter.”

“Recent events have demonstrated that hate speech can incite violence with deadly consequences,” he said on Twitter.

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, called the decision important because the issue of social media platforms’ liability for the content individuals post on their sites is undecided in Canada.

“I probably get on average two calls a week from people who are looking for some kind of advice about false or malicious postings about them or their businesses online,” he said. “And the reality is that for most people, until the issue of liability is resolved, they just don’t have the resources to take on these huge enterprises so they are really left without any remedy whatsoever.”

Winkler noted Giustra has the resources to overcome any obstacles that may be put in his path, and said if he is able to overcome those obstacles his action cou ultimately set the precedent in determining the social media giants’ liability in Canada.

“And if the courts find that there are circumstances under which the Facebooks and Twitters of the world are liable once they become aware of the defamatory nature of any content, then what is going to happen is one of two things — they will change their model and exercise some degree of control over the content once they receive complaints, or if they refuse to do that we will know that there is a remedy available,” he said.

Counsel for Twitter declined to speak on the case, and the company’s representatives did not respond to a request for comment. The Lawyer’s Daily also reached out to Giustra for comment but also received no response.

The Case could set precedent in determining social media giants’ liability for defamation: legal expert was published by The Lawyer’s Daily on January 26, 2021.

 

Be careful what you wish for when it comes to defamation claims

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The publicity surrounding a defamation lawsuit in British Columbia shows that attempts to silence a critic with legal action can sometimes backfire, says Toronto lawyer Howard Winkler.

“Plaintiffs must think long and hard about the consequences of bringing a defamation lawsuit when the expression is in relation to a matter of public interest,” says Winkler, principal and founder of Winkler Law. “What is playing out in B.C. is a cautionary tale for the rest of the country.”

According to a news story, a prominent developer launched a defamation lawsuit against a former council candidate for tweets that questioned his relationship with a local mayor. The former candidate responded by asking that the suit be dismissed under a provincial law protecting people from strategic lawsuits against public participation, or so-called anti-SLAPP legislation.

The story states tweets indicated the developer “surreptitiously wields power and influence over elected representatives,” specifically around plans to replace the city’s RCMP detachment with a municipal police force.

In his seven-page affidavit, the former candidate doubles down on his defence of truth saying the developer told him he had already decided who should be the chief of the new police force. He also alleges the developer boasted he was paying cleaning staff at city hall to retrieve items from councillors’ garbage cans.

Sometimes better not to say anything

“This a good example where the plaintiff might have been better off to just keep his head down and let this pass,” Winkler tells LegalMattersCanada.ca. “The only reason the former candidate was able to file the affidavit was that the developer was suing him. He was entitled to defend himself, and did so with the benefit of the anti-SLAPP legislation.”

Much of the evidence in the affidavit may never have come out if the developer had not launched the defamation suit, he says, but now those damaging claims can and have been publicly reported.

“By virtue of the anti-SLAPP legislation, the defendant now gets a free shot at the plaintiff, Winkler says. “While the best results for the defendant would be a dismissal of the action, he has also been given an opportunity to pursue his attack on the plaintiff.

“This arguably does way more damage to the developer than the original tweet,” he adds. “You have to wonder if he now regrets starting this action.”

The hearing to deal with the anti-SLAPP application was heard on Oct. 28.

Significant cost consequences

If the suit is dismissed under the anti-SLAPP legislation, the developer will have a significant cost liability.

“That will that add insult to injury, which is the purpose of anti-SLAPP,” he says. “It is specifically designed to force plaintiffs to consider whether what they are complaining about relates to a matter of public interest and if so to think very carefully about suing for defamation.”

If the lawsuit is dismissed due to the anti-SLAPP legislation, Winkler says that would mean the court decided the public interest in the matter outweighs the harm or the potential harm done to the developer.

Two provinces have anti-SLAPP laws

In 2015, Ontario enacted sections 137.1 to 137.5 of the Courts of Justice Act in an effort to curtail SLAPPs, or lawsuits intended to intimidate and silence critics who cannot afford costly and time-consuming litigation. It gives judges the power to dismiss lawsuits if the defendants can convince the court that the action arises from an expression that relates to a matter of public interest.

British Colombia is the only other province with such legislation, but Winker says he expects more provincial governments will develop similar laws in the future.

The Supreme Court of Canada took anti-SLAPP legislation into consideration in reaching judgments in two decisions this year, including one in which Winkler represented the respondent.

Originally published by LegalMatterscanada.ca on  November 9, 2020

Proposals to Amend the Libel and Slander Act

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In April 2020, Attorney General Doug Downey asked certain stakeholders to provide feedback about proposals contained in the Law Commission of Ontario (LCO)’s report titled Defamation Law in the Internet Age (Report).1 The LCO did a thorough job in their review of the existing law and their consideration of the amendments needed to reflect the internet age. There are, however, some recommendations in the Report which we believe need to be tweaked. In particular, in our view:

  • There should not be a mandatory four-week negotiation period before issuing a claim, as had been proposed in the Report;
  • The shorter limitation period for news media should be preserved to encourage a more active and vigorous press. The Report proposes abolishing the existing short limitation periods for newspapers and broadcasters in the current Libel and Slander Act;
  • The takedown regime proposed in the Report should be modified;
  • The definition of “publisher” in a new Defamation Act should not absolve an intermediary platform, such as Google, from responsibility for the publication where the platform has been given notice of a defamatory publication on its platform and fails to take it down; and
  • A specialized tribunal should be established to dispose of defamation claims under $10,000.

There are three primary recommendations that we believe need to be included in any new legislation: (1) preserving a shorter limitation period for the news media; (2) expanding liability for online platforms; and (3) creating a specialized defamation law tribunal.

1. Preserving the Shorter Limitation Period for News Media

It is still important in terms of encouraging an active and vigorous press to provide for the shorter limitation period. The impact of the publication by a newspaper or broadcaster is swift, meaning that if someone has a complaint, they need to address it immediately to mitigate the damage. The significance and the seriousness of the complaint against a media report diminishes over time. A shorter limitation period provides protection for publishers and broadcasters, so they do not continue to face the exposure and risk of lawsuits that inhibit their ability to do their necessary job in our democracy.

Under the current law, a plaintiff must give notice of their complaint within six weeks and then must commence the action within three months. The LCO was concerned that a six-week notice of libel period was too short for unsophisticated, unrepresented parties, and they might miss it because they were not aware of the limitation period which, if missed, becomes a complete bar to them taking action. But the answer is not to completely abolish the shorter limitation period. The purpose of a notice of libel is to give the broadcaster or publisher an opportunity to consider the matter and publish a correction, an apology, or a retraction to mitigate the harm where they conclude they made a mistake.

Given the purpose of the current law, we suggest keeping the three-month limitation period for news media. However, we suggest that if complainants do not avail themselves of the opportunity of the notice of libel within the six-week period, they should not lose the right to sue.

We also propose a simple solution to offset the impact of the short limitation period on unrepresented, unsophisticated persons. Specifically, we propose a requirement that media outlets must post a notice in their contact sections alerting people that they have three months in which to commence an action about any matter contained in their publication. That way, if someone has a problem with a newspaper or broadcaster, they simply go to the contact page to figure out who to contact, and they will see the notice. This balances the protection of unsophisticated plaintiffs and the public interest in an unfettered media.

2. Expanding Liability for Online Platforms

More must be done to hold online platforms such as Google liable when they refuse to remove defamatory material after they have been made aware of it. Unless these platforms take down offending material after it is brought to their attention, there should be a right to include them as a defendant in any defamation action.

We propose that online platforms should have prima facie liability as a secondary publisher after having been put on notice of defamatory content, but it should then be a complete defence if they comply with the takedown obligations proposed by the LCO (subject to certain modifications). As it stands now, under the LCO recommendations, someone can make a takedown request of Google if something is published on the internet that they find offensive. Google then contacts the original publisher or author and alerts them to the request. If that person does not respond, Google removes it. But if the originator objects to the takedown notice, the posting remains. The Report suggests that, in these circumstances, Google may keep the identity of the original publisher confidential.

We believe that is wrong. In our view, if somebody wants to take a stand and have the material stay up, Google should be required to give the plaintiff identifying information for that person for service of a statement of claim. If Google cooperates in providing the identifying information, then the true wrongdoer can be held to account and only then should Google be immune from liability. Allowing Google to maintain the anonymity of the original poster leaves the offended person with little recourse to clear their name.

We acknowledge there may be good public policy reasons for the author of a post to remain anonymous. However, under the current law, it is up to the plaintiff to uncover their identity, which could include filing a motion or multiple motions for Norwich orders —that compel third parties to hand over information that identifies the original publisher — which can be time-consuming and very expensive. In our view the onus should be on the person who wants to remain anonymous to go to court and obtain that relief. Instead of forcing the plaintiff who has been harmed to spend tens of thousands of dollars, Google should have to give up the identity of the person if they want the information to stay online. If the original poster believes there is a public interest in their staying anonymous, then they should incur the expense of seeking an order from the court.

3. Creating a Specialized Defamation Law Tribunal

When a person’s reputation has been defamed, immediate action is essential, but the current legal system falls short in providing swift justice. We propose creating a Defamation Law Tribunal (DLT) to handle damage claims under $10,000. The tribunal would be staffed with decision-makers with subject matter expertise, and the process would be conducted in writing.

The problem with such a tribunal is that in many cases the plaintiff seeks the removal of content, not only a declaration that they were wronged. A tribunal would not have the jurisdiction of a judge to grant an injunction. Accordingly, we envision that the tribunal would be empowered to make a recommendation as to the relief that should be available to the plaintiff. The plaintiff could then move before a judge of the Superior Court of Justice to obtain that relief. Such a process would be fast and cheap and could provide the kind of remedy that people really seek, namely, vindication and the removal of defamatory content.

Conclusion

The LCO was asked to report on reform of the defamation system. They have fulfilled that mandate. Stakeholders have now commented on the recommendations of the LCO.

Now it is over to the Attorney General to consider whether to amend the Libel and Slander Act and what recommendations to accept if it is amended.

Originally published by Toronto Law Journal on September 30, 2020

1The author provided submissions to the Attorney General regarding the Report (co-authored with Eryn Pond): Eryn Pond and Howard Winkler, Submissions to the Attorney General of Ontario on the Law Commission of Ontario’s Defamation in the Internet Age Final Report, July 2020, available online:
https://www.winklerresolution.com/wp-content/uploads/2020/08/Winker-Law-Submission-to-the-AG-on-theLCOs-Defamation-Law-in-the-Internet-Age-Final-Report.pdf

Five key recommendations on proposed defamation law

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Toronto lawyer Howard Winkler says he is hopeful his firm’s recommendations on defamation law reform find their way to new legislation.

In April, Attorney General Doug Downey asked Winkler and other stakeholders to provide feedback about proposals contained in the Law Commission of Ontario (LCO)’s report titled Defamation Law in the Internet Age.

He and Eryn Pond, a partner with his firm, collaborated on a comprehensive submission with suggestions he believes would strengthen a proposed new Defamation Act.

“We do as much media defendant work as plaintiff’s work, so the recommendations we are making, in our view are balanced. We’re taking everyone’s interests into consideration,” says Winker, principal and founder of Winkler Law. “The law commission did a really thorough job in their review of the existing law and their consideration of the amendments needed to reflect the internet age.”

Some changes need to be tweaked

There are, however, some recommendations in the report which Winkler believes need to be tweaked.

“Now it is over to the attorney general to consider whether to amend the Libel and Slander Act and what recommendations to accept if it is amended,” he adds. “If the government gets to the point where this is a priority, I trust and hope that our recommendations will be given proper consideration.”

The 27-page report to the AG’s office by Winkler and Pond offered these “key” recommendations: 

  • No mandatory four-week negotiation period before issuing a claim;
  • Preserving a shorter limitation period for news media to encourage a more active and vigorous press;
  • Modifying the proposed takedown regime;
  • The definition of “publisher” in a new Defamation Act should not absolve an intermediary platform, such as Google, from responsibility for the publication where the platform has been given notice of a defamatory publication on its platform and fails to take it down; and
  • A specialized tribunal be established to dispose of defamation claims under $10,000.

Winkler says they have three primary recommendations they believe need to be included in any new legislation starting with preserving a shorter limitation period for the news media.

Encouraging a ‘vigorous’ press

“We believe that it is still important in terms of encouraging an active and vigorous press to provide for the shorter limitation period,” he tells LegalMattersCanada.ca. “Our view is that the impact of the publication by a newspaper or broadcaster is swift so that if someone has a complaint, they need to address it immediately in order to mitigate the damage.

“The significance and the seriousness of the complaint against a media report diminishes over time,” Winkler adds. 

He explains the shorter limitation period provides protection for publishers and broadcasters so “they don’t continue to face the exposure and risk of lawsuits that inhibit their ability to do their necessary job in our democracy.”

Under the current law, a plaintiff must give notice of their complaint within six weeks and then must commence the action within three months, Winkler says.

“The law commission was concerned that a six-week notice of libel period was too short for unsophisticated, unrepresented parties, and they might miss it because they weren’t aware of the limitation period which, if missed, becomes a complete bar to them taking action,” he says. “But the answer is not to completely abolish the shorter limitation period.”

Purpose of a libel notice

The purpose of a notice of libel, Winkler says, is to give the broadcaster or publisher an opportunity to consider the matter and publish a correction, an apology or a retraction to mitigate the harm where they conclude they made a mistake. 

“What we say is keep the three-month limitation period and if someone delivers a notice of libel it gives the media an opportunity to consider and respond, but if you don’t avail yourself of the opportunity of the notice of libel, you shouldn’t lose your right to sue,” he says.

Winkler also offers a simple solution to offset the impact of an unrepresented, unsophisticated person missing the limitation period, proposing media outlets post a notice on their contact sections, alerting people they have three months in which to commence an action about any matter contained in their publication.

“That way, if I have a problem with a newspaper or broadcaster, I simply go to their contact page to figure out who to call or who to write to and I will see this notice that warns me about the three-month limitation period,” he says, adding this balances the protection of unsophisticated plaintiffs and the public interest in an unfettered media.

Winkler also says more must be done to hold online platforms such as Google liable when they refuse to remove defamatory material after they have been made aware of it.

The duty of secondary publishers

He says unless these platforms take down offending material after it is brought to their attention, there should be a right to include them as a defendant in any defamation action.

“We say they should have prima facie liability as a secondary publisher after having been put on notice of defamatory content, but it will then be a complete defence if they comply with the takedown obligations that are being proposed by the law commission subject to the modifications recommended by them,” Winkler says.

As it stands now, under the LCO recommendations, someone can make a takedown request of Google if something is published on the internet that they find offensive. 

Google then contacts the original publisher or author and alerts them to the request. If that person doesn’t respond, Google removes it, but if the originator objects to the takedown notice, the posting remains. The report suggests in these circumstances Google may keep the identity of the original publisher confidential.

 “We say that is wrong,” Winkler says. “If somebody wants to take a stand and have the material stay up, Google should have to give the plaintiff identifying information for that person for service of a statement of claim.

If Google cooperates in providing the identifying information of the original publisher then the true wrongdoer can be held to account and only then should Google be immune from liability.”

Problem with anonymity

He says allowing Google to maintain the anonymity of the original poster leaves the offended person with little recourse to clear their name.

Winkler acknowledges there may be good public policy reasons for the author of a post to remain anonymous but under the current law, it is up to the plaintiff to uncover their identity, which could include filing a motion or multiple motions for a Norwich order – that compels third parties to hand over information that identifies the original publisher –  which can be time-consuming and very expensive.

“We say the onus should be on the person who wants to remain anonymous to go to court and get that relief,” he says. “Instead of forcing the plaintiff, who has been harmed by this, to spend tens of thousands of dollars, Google should have to give up the identity of the person if they want the information to stay online. 

“If the original poster believes there’s a public interest in their staying anonymous let them go to the expense of seeking an order from the court. After all they cast the first stone”.

Winkler says when a person’s reputation has been defamed, immediate action is essential, but the current legal system falls short in providing swift justice.

He proposes creating a Defamation Law Tribunal (DLT) to handle damage claims under $10,000.

The tribunal would be staffed by those with subject matter expertise and the process would be conducted in writing, Winkler says. 

‘The kind of remedy that people are really looking for’

“The problem even with such a tribunal is that in many cases what a plaintiff is looking for is the removal of content, not only the declaration that they were wronged,” he says. “A tribunal won’t have the jurisdiction of a judge to give an injunction so what we envision is that the tribunal, in making its decision, could make a recommendation as to the relief that should be available to the plaintiff. The plaintiff would then have the ability to move before a judge of the court to get that relief.

“The point is it is fast, cheap and provides the kind of remedy that people are really looking for, which is vindication and the removal of defamatory content,” Winkler adds. 

He says he’s not sure about the next steps in updating Ontario’s laws to reflect the new realities brought on by the internet.

“The law commission was asked to report on reform of the defamation system. They’ve fulfilled that mandate. The government has asked for certain stakeholders to comment on the recommendations and that’s what we’ve done,” Winkler says. “The question is, for this government and given all the other things they presently have to deal with, what will the legislative priority be in relation to amending the Defamation Act?”

The report of the LCO can be found here. The submissions of Winkler Law can be found here.

Originally published by LegalMatterscanada.ca on August 11, 2020

Defamation law reform: the good, the bad and the missed opportunity

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By Paul Russell, LegalMatters Staff • Proposals to update Ontario’s defamation laws to reflect social and technological changes in communications brought about by the internet are mostly sound, says Toronto lawyer Howard Winkler.

In March, the Law Commission of Ontario (LCO) released its final report titled Defamation Law in the Internet Age, with its terms of reference noting, “Ontario courts and, indeed, courts throughout the world, have been gradually adapting defamation law principles to contemporary circumstances. However, legislative reform in Ontario has been limited and Ontario’s Libel and Slander Act is now significantly outdated.”

The Attorney General’s office has asked Winkler, principal and founder of Winkler Law, among others to provide feedback about the proposals and he says they will for the most part get his endorsement.

“This is a thorough, well-written report, that takes a measured approach to reform the laws of defamation, without recommending change just for change’s sake,” Winkler tells LegalMattersCanada.ca. “Of the 39 recommendations, 27 will really have little substantive effect or practical consequence, as they simply tweak existing principles. In some respects, it’s an affirmation and continuation of a combination of the existing statutory and common law.”

Three significant recommendations

Three of the remaining 12 recommendations are particularly significant, he says, the first being recommendation 38, outlining how defamatory material could be removed from the internet in an expedient manner.

“If someone believes material on a website is defamatory of them (or their business), they may deliver a notice of complaint,” Winkler says. “The website, referred to here as the intermediary, then would be obligated to send, or attempt to send, the complaint to the person who posted the content. The publisher then has two days to respond.”

“If the publisher fails to respond, the intermediary must take down the material complained of. Since many defamatory comments about businesses or individuals are posted anonymously by people deliberately hiding their true identities (and motivations) by using terminals in places such as public libraries or coffee shops, this proposal serves as an expedient way of ridding the internet of speech of little value.”

If the publisher responds opposing the take down of the material the content remains on the website, he says, as the “intermediary does not get into the business of assessing the complaint or the response.”

In addition, if the publisher is anonymous, “anonymity is protected,” Winkler says. “The injured party is then no further ahead.”

An overly restrictive definition of ‘publisher’

Which leads to recommendations 35 and 36 that he takes issue with, which deal with intermediaries and their apparent immunity from liability for defamation.

According to the report, “The new Defamation Act should provide that a defamation action may only be brought against a publisher of the expression complained of … The new Defamation Act should provide that a publisher of a defamatory expression should not be liable for republication of the expression by a third party unless the publisher intended the republication.” A publisher is then defined “to require an intentional act of communicating a specific expression.”

“I’m concerned that the LCO is rejecting the notion of liability for online platforms such as Google when they refuse to take down defamatory material after being put on notice of it,” Winkler says.

He gives the common example of someone searching for a business name online and finding not only the company website, but also comments about the firm by other users, “since Google in its business listing, which appears on the top right of a search whether one wants it or not, encourages the posting of such reviews.”

“If there is a defamatory post about you or your business and you give notice, Google will leave it up if the person who originally published the post responds to the notice. Then the only choice you have, if recommendations 35 and 36 are adopted, is to sue the original publisher,” Winkler says.

No remedy for those defamed

The problem here is that the posting may be demonstrably false, the publisher may have responded to the complaint under recommendation 38, the publisher may have posted the message anonymously and not be traceable or out of the reach of the jurisdiction of Canadian courts, he says. This will effectively leave a wrongfully injured person with no practical remedy.

Winkler believes that under circumstances such as these, the website should not be able to escape liability for the content if it has been notified that the material is defamatory and it chooses to leave it up for the world to see.

He believes the commission should have embraced the approach taken in Australia, where courts have consistently ruled that if an online platform is put on notice of defamatory content and it chooses not to take it down, they become secondary publishers and become jointly and separately liable for it, along with the original publisher.

In 2017, the Supreme Court of South Australia ruled that website operators were liable for defamatory content on their platforms, but only after they were put on notice about it, and if they then failed to take it down.

“The ignorant should not be allowed to wreck reputations with impunity,” the 2017 judgment reads. “Once knowledge, actual or constructive, of the presence of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk … which may be made in any action brought by a primary publisher.”

Google attempted to escape liability by saying their algorithms are very complicated and that they can’t be expected to monitor and supervise all of the content made available. According to Winkler “the court rejected this argument ruling essentially that ‘It’s your business model, it’s your algorithm and so don’t complain to us that you don’t — through the deficiencies in your own business model — have the ability to control defamatory content you’re making available.’

“In my view, the Australian approach is correct, yet the commission specifically rejects it in this report and instead recommends immunity for content providers such as Google,” Winkler says. “Whether liability is to be extended to intermediaries will ultimately be a political decision left to the Ontario government.”

A missed opportunity

He also believes the LCO missed an important opportunity. He says he would have preferred if the report went further with recommendation 39, which suggests the province explore setting up an online dispute resolution platform for the resolution of certain defamation actions.

“The commission missed the opportunity to recommend the establishment of such a system and make recommendations of what it could look like,” Winkler says. “The reality is that the court process is way too slow and expensive and doesn’t provide an efficient and timely remedy to someone who is being harmed by defamatory material online.”

He says the commission could have recommended something similar to the Condominium Authority Tribunal (CAT), an online dispute resolution mechanism used to settle disputes involving those units.

With the CAT, Winker says both sides submit material to a panel of adjudicators with subject matter expertise in condominium law, who then make expedited rulings and can award limited damages.

“A similar tribunal for defamation cases would give expedited vindication for those who have been defamed. Since quick public vindication is often the most effective remedy for a harmed reputation, he believes that such a tribunal would be popular with plaintiffs and rid the overburdened court system of many actions.

“Unfortunately, the commission simply raised the prospect of this sort of mechanism, then stopped short of providing recommendations about what it could look like,” Winkler says.

Those who have been asked to comment on the report have until Aug. 1 for submissions, he says, with the province left to decide whether to accept any or all of the 39 proposals.

Originally published by LegalMatterscanada.ca on May 11, 2020

Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer

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The Yukon Court of Appeal has sent a defamation case back to trial because of the inadequacy of the judge’s instruction to the jury, with a lawyer characterizing it as a “results-driven” decision as he felt the court did not like the original verdict.

The case in Senft v. Vigneau 2020 YKCA 8 deals with a defamation action brought forward by Angela and Michael Senft for allegedly defamatory comments made by Audrey Vigneau and Susan Herrmann. The Senfts had been involved in a dispute with a former friend, Daniele McRae, over the title to her house. The defendants claimed the Senfts were trying to force McRae out of her home and move her into a seniors’ residence, allegations which were posted on Facebook and in flyers sent out to the Dawson City community, as well as a GoFundMe page.

The Senfts commenced an action against Vigneau and Herrmann, who both later publicly apologized. At trial, Vigneau and Herrmann defended their comments by saying they were fair comment, but the Senfts replied by saying they had acted with malice in publishing the comments; a successful claim of malice would defeat any successful defence of fair comment.

The jury awarded damages to the Senfts, finding Vigneau and Herrmann had made the allegedly defamatory comments and acted with malice when publishing them. The jury made no finding with respect to the fair comment defence, and awarded the Senfts approximately $377,000 against Vigneau and approximately $432,000 against Herrmann.

But Justice Daphne Smith, writing for a unanimous Court of Appeal, set the awards aside and ordered a new trial. She ruled the trial judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question to the jury, and also failed to instruct the jury that express malice could not be considered unless they first determined Vigneau and Herrmann had established the defence of fair comment on a balance of probabilities and if established, in order to defeat the defence, that malice was Vigneau and Herrmann’s dominant motive in publishing the defamatory comments.

“In my opinion, as a matter of law, the judge was required to make a determination on whether the evidence adduced raised a probability of malice before instructing the jury on the issue,” she wrote in her March 27 decision. “His failure to do so constituted an error of law reviewable on a standard of correctness. In the circumstances of this case, this error could not be rectified after- the-fact on appeal.”

Justice Smith noted the lower court judge “properly recognized that, months after the trial had been completed, he could not undertake a detailed review and weighing of the evidence in order

to remedy the oversight of failing to make the required ruling.”

“This court is faced with the same problem. Where the issue of express malice raises a question of fact, an appellate court is generally not well-suited to step in and undertake a detailed evidentiary analysis as a matter of first instance in order to determine if the evidence raised a probability of malice,” she wrote. “This court is in no position to undertake a detailed review and analysis of the evidence for the purpose of determining if it raised a probability of malice, where the trial judge himself found the delay had made it impossible for him to undertake the task. In my view, the only way the error in this case can be rectified is to order a new trial.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution said the lesson of the decision is that “close attention has to be paid to the technical requirements of the law, and that if you fail to appreciate those technical aspects of the law then the decisions of the court are going to be open for review.”

“In terms of remitting it back for consideration [the Court of Appeal] had two choices — they could have sent it back to the trial judge or ordered a new trial. Given the statement by the trial judge that he could no longer, given the length of time, undertake a detailed review in weighing the evidence they were incapable of sending it back to the trial judge for reconsideration, so they were forced therefore to order a new trial,” he said. “However, the question remains of whether the Court of Appeal could have substituted its own decision and brought an end to the litigation, but I think given the circumstances of this case, given that it was a jury trial and jury verdict it probably would have been very difficult for them to do that.”

But Winkler said he was of the view that the Court of Appeal’s decision was very results-driven, in that he felt the court didn’t like the jury verdict and was inclined to find a basis to allow the appeal.

“You never know the decision-making process for a jury and that is why they are very difficult to overturn,” he said. “So, when I read this case, it was likely the jury was wrong in finding the

defendants were motivated by malice, which is why on the face of it, it appears to be an unfortunate decision. But what the court needed to do was find technical deficiencies in the judge’s decision-making and instructions to the jury to open the door to the opportunity of allowing the appeal.”

Counsel in the case did not respond to a request for comment. The Yukon Court of Appeal is made up of justices of the British Columbia Court of Appeal and justices from the Yukon Territory, Northwest Territories and Nunavut.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

The Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer was published by The Lawyer’s Daily on April 9, 2020

 

A balancing of interests is currently paramount in anti-SLAPP litigation

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

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

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

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

Anti-SLAPP

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

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

Decision pending

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

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

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

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

Facebook postings

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

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

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

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

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

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

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

Originally published by LegalMatterscanada.ca on March 13, 2020

Ending online defamation starts with making websites accountable

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

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

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

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

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

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

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

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

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

12 commentators ordered to pay damages

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

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

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

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

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

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

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

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

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

A warning sent to others

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

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

However, he cautions that more has to be done. 

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

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

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

Originally published by LegalMatterscanada.ca on February 10, 2020

Howard Winkler’s media roundup

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Toronto lawyer and mediator Howard Winkler is frequently called upon by the media as a trusted source for their news stories, particularly for his focus on defamation and privacy issues.

See the complete list below:

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Toronto lawyer and mediator Howard Winkler tells the Toronto Star he has brought a motion to dismiss a defamation case against his client, Ontario’s former PC leader, under a section of the Courts of Justice Act aimed at limiting “strategic lawsuits against public participation” or SLAPP actions.

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Toronto lawyer and mediator Howard Winkler tells QP Briefing that a threat to sue someone during an election campaign is likely “fairly empty,” given litigation is expensive and time-consuming and “any vindication that then comes with a favourable judgment, again absent actual harm, is often of little real benefit.”

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Legal action is almost guaranteed after a city councillor and a former colleague filed a court application known as a Norwich Order, which requests the names, contact information, messages and contracts between a web developer and clients who hired or directed them to create negative websites, Toronto lawyer and mediator Howard Winkler tells the London Free Press.

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Toronto lawyer and mediator Howard Winkler tells the Globe & Mail that the statements made by a high-profile investor against his client, a private equity manager, were “on their face, outrageous, false and defamatory” and “clearly indefensible.”

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In his recent column for Law Times, Toronto lawyer and mediator Howard Winkler says the end to abusive non­-disparagement clauses in employment law releases is on the horizon thanks in part to Uber’s attempt to enforce the over-reaching arbitration provision in its agreement with its drivers.

Toronto lawyer and mediator Howard Winkler tells La Presse the Liberal government’s endorsement of a contentious article in the new free trade agreement between the U.S., Mexico and Canada will give immunity to social media companies in Canadian courts even if they knowingly disseminate fake, false and defamatory statements of their members.

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By signing on to the United States-Mexico-Canada Agreement (USMCA), the Liberal government agreed to significantly alter the existing common law of defamation, Toronto lawyer and mediator Howard Winkler writes in Law Times.

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A former member of Parliament’s unsuccessful defamation case against a major B.C. newspaper underscores a recent trend by the courts to balance interests more towards freedom of expression rather than protection of a person’s reputation, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

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Toronto lawyer and mediator Howard Winkler tells Global’s 640 Torontohe’s concerned the Prime Minister’s Office (PMO) may have overstepped its authority by requesting Twitter delete what it said was a fake account impersonating Environment Minister Catherine McKenna.

Subway’s defamation lawsuit aimed at stifling criticism: CBC

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TORONTO — A lawsuit by the world’s largest fast-food operator over a report on the content of its chicken sandwiches is an attempt to stop the CBC from covering matters of public interest, an Ontario court heard on Tuesday.

Subway’s claim for $210 million in damages over a Marketplace broadcast in February 2017 about the chain’s Canadian chicken offerings has already had a chilling effect, a lawyer for the public broadcaster said.

Gillian Kerr told Superior Court that laboratories have become leery of working on investigative pieces or are demanding full indemnity before doing so.

U.S.-based Subway IP, along with Subway Franchise Systems of Canada and Doctor’s Associates in the United States, claims the program defamed the company and hurt its bottom line.

The company argues the program — which found only 50 per cent chicken DNA in Subway’s chicken sandwiches with as much soy — was factually wrong and based on a “complete lack” of scientific evidence.

“The chicken products are, and were, one per cent soy protein,” Subway lawyer Sana Halwni told the court. “Exactly as Subway told the CBC before they ran the broadcast.”

The lawsuit, Subway says, is aimed squarely at setting the record straight, not silencing the broadcaster.

In an interview with AdvocateDaily.com, Toronto lawyer and mediator Howard Winkler says it is somewhat surprising that the parties chose to argue this matter now given that the Supreme Court of Canada (SCC) is scheduled to hear two appeals on Nov. 12, 2019, that will determine the proper interpretation of the legislation in issue.

“It is likely that Justice Edward Morgan will reserve his decision until the SCC renders its decision,” says Winkler, principal and founder of Winkler Dispute Resolution.

“If the SCC alters in any significant way the approach to the legislation taken in the cases under appeal, the parties in this case may have to file additional evidence and written argument and undertake further oral argument. It might have made more sense for this motion to be held in abeyance until after the SCC renders its judgment.”

He says the two cases before the SCC will serve to clarify the proper interpretation of legislation in issue, whose purpose is to, among other things, encourage individuals to express themselves on matters of public interest and discourage the use of litigation as a means of unduly limiting such expression.

“I am counsel to a defendant in one appeal before the Supreme Court, and we will be arguing that the Court of Appeal interpreted the legislation in a way that it fails to properly achieve the purposes of the legislation,” Winkler says.

An interesting aspect of this case is the suggestion by the CBC that the lawsuit is making laboratories, which are critical to CBC scientific investigations, reluctant to participate in their investigations, he says.

CBC wants Morgan to toss the lawsuit before trial under so-called anti-SLAPP legislation, which aims to protect free expression on matters of public interest.

“The onus is on Subway [to prove] that there are reasonable grounds to believe that the CBC’s responsible communication defence is not valid,” CBC co-counsel Christine Lonsdale told Morgan.

Subway lawyer William McDowell countered that no defence under the legislation has succeeded in cases where the “very core of the story” has been found to be false.

Lonsdale said the Subway segment aired after a thorough investigation that took months. The broadcaster asked Trent University to analyze the chicken content of the sandwiches, then had a reviewer from Guelph University look at the results.

“Those are very relevant factors in assessing the diligence of Marketplace,” Lonsdale said. “These were not less trustworthy sources or sources with an axe to grind.”

In addition, she said, it was a matter of significant public interest, which favoured the dissemination of the information. CBC, she said, was practising responsible journalism.

Marketplace asked Subway repeatedly for comment before airing the piece but the company refused an on-air interview. It did deny CBC’s findings but refused to provide the percentage of chicken or other ingredients on the basis the information was proprietary.

Instead, the company developed an internal public relations strategy and then an external strategy that denounced the findings as 100 per cent wrong, court heard.

“They decided they weren’t going to engage with the CBC,” Lonsdale said. “(But) the Subway side of the story was reflected in the program,” Lonsdale said.

The CBC lawyers said Subway has a history of aggressive litigation, including a separate lawsuit against Trent University.

Kerr also said the restaurant operator had exaggerated the impact of the broadcast on its fortunes, which she said were minimal at best.

“There’s a complicated question as to what the losses suffered from a defamation are,” Morgan interjected.

The hearing continues.