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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

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

An ongoing lawsuit in British Columbia could help define what responsibility online platforms have once they are notified that content on their site is defamatory, Toronto lawyer and mediator Howard Winkler says.

The matter involves a businessman who is suing Twitter over its “role in policing defamatory or hateful speech” on the website, reports The Globe and Mail.

“I hope that the plaintiff sees this action through to the end because it involves a really important legal principle in Canada that needs to be clarified,” says Winkler, principal and founder of Winkler Dispute Resolution.

He says defamatory postings on platforms such as Facebook and Twitter have been a serious problem for individuals and businesses for a long time.

“The liability of websites for content posted by others once the host has notice of the defamatory nature of the content has never been tested in Canadian courts,” Winkler says, “Fighting the Googles, Facebooks and Twitters of the world would require enormous resources that most individuals and businesses don’t have.”

Winkler concedes it would be “unfair and unrealistic” to think that Facebook or Twitter could monitor all of the content on their sites since new material is posted all the time.

“In fact, traditional law provides them with immunity in those circumstances, through a defence called innocent dissemination,” he explains.

However, once these websites are made aware of content that is defamatory, Winkler says it is a completely different situation.

“In Australia, another common law jurisdiction, they become liable for the content based on traditional principles, which should equally apply in Canada,” he tells AdvocateDaily.com.

The Globe article states, “Twitter and other social-media companies such as Facebook view themselves as platforms,” and not publishers, and therefore can’t be held responsible for content.

But Winkler says that argument was rejected by the Supreme Court of South Australia.

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

Winkler says that is consistent with traditional principles in the law, giving the example of a newspaper being held liable if an article it publishes includes defamatory quotes.

“Why wouldn’t the same principles apply to Google or Facebook, which are today’s facilitators of news and information?” he asks. “It is an important principle because people in Canada are, at the moment, helpless in relation to the defamatory and fake content that’s posted about them when the author is anonymous, out of the reach of Canadian courts or impecunious. To date, the response of most large internet providers is to refuse to take any action whatsoever.”

Winkler says that creators of this damaging material often use aliases that don’t identify the author of the content, and they post the material from a public computer, such as those found in a library or internet café, so that their identity is untraceable.

“If we can’t impose some kind of liability or control on entities like Facebook and Twitter, people are left with no recourse, even though the content can be immediately and permanently damaging to one’s reputation,” he says.

Winkler says there are two things that could impact the lawsuit, the first, an obstacle to plaintiffs, being “a little-discussed paragraph” in the yet-to-be-ratified Canada-United States-Mexico Agreement.

“If you read the agreement, you will see that paragraph two of clause 19.17 essentially provides absolute immunity for internet content providers, paralleling an existing provision in the Communications Decency Act in the United States,” he says.

When the agreement was adopted in principle by the three countries, Winkler says there was “very little discussion about this paragraph’s inclusion, giving entities like Google, Facebook and Twitter absolute immunity in relation to the content that they post.”

The second factor, this time favouring a plaintiff, is legislative reform, he says, noting that some U.S. Democrats have suggested they would consider amending the Communications Decency Act to eliminate this immunity.

Here in Canada, some members of the federal government have suggested that online platforms should be regulated, Winkler says, even though to expose the platforms to liability would be contrary to the proposed trade agreement.

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.

The winners are companies like Google and Facebook, which facilitate online communication, says Winkler, principal and founder of Winkler Dispute Resolution.

“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,” he writes. “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.”

Winkler says the ability to protect one’s reputation is critical, citing a landmark Supreme Court of Canada case, which stated, “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.”

For years, Canadian courts and provincial lawmakers have struggled with the sometimes competing interests between the constitutional right to freedom of expression and the right to protect one’s reputation, he writes.

“This fine balance will be fundamentally altered due to a clause in the USMCA,” Winkler says. “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 paragraph two of clause 19.17 of the USMCA.

While some claim this as a victory for freedom of expression, Winkler argues it’s more like a “nail in the coffin” of people’s rights to safeguard their reputation from the explosion of anonymous, false and defamatory content that appears online and served up by search engines.

“One of the greatest challenges to business and individuals today is dealing with the proliferation of fake, false and defamatory content on the internet,” he writes. “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.”

Winkler says it’s not uncommon for anonymous individuals to post fake, false or defamatory reviews of a business with the help of a public computer in a library or from a jurisdiction outside the reach of Canadian courts, including the U.S.

“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,’” he writes. “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.”

By contrast, Winkler says other common law countries like Australia continue to lead the way when it comes to online defamation and the liability of secondary publishers.

“In the [case], the Supreme Court of South Australia ruled that once on notice, Google must either remove the material or face liability as a secondary publisher,” he writes.

In the matter, the internet giant refused to remove search results that suggested a doctor was a stalker, which the court found were defamatory, Winkler says.

“The court awarded general damages against Google in the amount of AUD$115,000 (approximately CDN$106,000) for loss of reputation and hurt feelings. The award was upheld on appeal,” he adds.

“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.

The common law approach of imposing some responsibility on service providers to exercise control over the content they facilitate make sense and without the USMCA, there’s no reason to think Ontario courts wouldn’t follow the same principles, Winkler writes.

“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,” he says.

Winkler advises provincial legislators and Ontario courts to pay close attention to the USMCA provision and ensure they uphold protection for reputational damage.

“The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump,” he writes. “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.”

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.