Winkler Dispute Resolution

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

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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.

Aussie court finds media outlets liable: Winkler

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Australia continues to lead the way in the consideration of online liability, and it remains to be seen whether Canadian courts will follow its lead, says Toronto lawyer and mediator Howard Winkler.

“Australian courts are trending towards the protection of reputation in priority to free expression, as shown in recent decisions,” says Winkler, principal and founder of Winkler Dispute Resolution.

A recent decision by the Supreme Court of New South Wales concerned a man whose treatment in custody attracted nationwide coverage, as well as commentary on the websites of various news agencies. After he was released, the man sued several large Australian media outlets, alleging they were responsible for the comments posted on their Facebook pages. The court agreed, stating, “When a defendant commercially operates an electronic bulletin board and posts material that, more probably than not, will result in defamatory material, the commercial operator is ‘promoting’ defamatory material and ratifying its presence and publication.”

Winkler tells AdvocateDaily.com he was surprised by the decision, noting “It represents a significant extension of the common law and arguably takes it to an unreasonable extreme where it starts to unduly discourage free expression.”

He explains that the court ruled that websites take on the liability of a being a primary publisher when certain conditions are met: it provides a platform for comments, facilitates the dissemination of those comments, has the ability to either censor or turn off comments, has the ability to filter comments by identifying certain key words and can anticipate defamatory comments.

“This judgment takes the principle of liability further than it’s ever been taken before, at least in a common law jurisdiction,” he says.

In 2017, the Supreme Court of South Australia set another precedent in this area when it ruled that the web site 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.”

“That was a fair decision, as it essentially recognized that sites such as Google cannot monitor every comment made and decide whether it should be posted or not,” Winkler says.

In contrast, he says the recent Australian decision doesn’t give publishers the protection of having time to react and take the defamatory material down before they are held responsible for it.

“In interpreting common law principles, courts always have to recognize the fine balance between freedom of speech and the protection of reputation,” Winkler says.

“The pendulum swings back and forth between those two, with Canadian courts currently trending towards the protection of expression, while the Australian courts are favouring the protection of reputation,” he says.

Winkler says this issue has not yet been tested in Canadian courts, which follow the same common law principles as Australian courts.

“When this issue does come up here, judges will have to carefully consider the Australian trend and decide whether they’re going to follow it, or not,” he says.

Case may clarify how platforms treat defamatory content: Winkler

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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.

Everyone loses in cautionary New Brunswick defamation case

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A recent New Brunswick decision is a cautionary tale for all involved in defamation claims, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

The case involved a gallery owner who won $3,000 in damages and costs from an artist who badmouthed her online during a dispute over payment.

But Winkler, principal and founder of Winkler Dispute Resolution, says the gallery owner’s victory rang somewhat hollow, considering the small recovery, as well as the time and cost of bringing the action, seeking between $25,000 and $50,000 in general damages alone.

“This decision is a cautionary tale in several respects,” Winkler says. “Not only should people be careful about what they post online, but they must also be careful when deciding what to sue someone over.”

According to the court ruling in the case, the events in question date back to late 2013, when one of the artist’s pieces was sold by the gallery for $4,000. About a year after the sale, when the gallery owner told the court she was suffering from business and personal problems, the artist was still waiting for his full share. He then took to Facebook to vent his frustrations in a post, part of which accused the gallery owner of “theft.”

Separately, the artist won around $750 from the gallery owner, including costs, in a small claims action he launched over the underlying payment dispute.

According to Winkler, the defamation case came down to the artist’s use of the word “theft,” which the judge invoked in dismissing his defences of both justification and fair comment.

“Everyone is entitled to comment fairly on matters of public interest and such comments are protected against claims of defamation. That does not include a reference to someone as engaging in a criminal activity such as theft,” wrote the judge, who noted the distinction between a person who steals and someone who avoids paying debts.

Winkler, who was not involved in the matter and comments generally, says the case was a close one, and that the result could easily have gone the other way.

“The word ‘theft’ suggested an element of criminality to this judge, but in the context of the overall post, another judge or reasonable reader could easily have come to the conclusion that the meaning was not defamatory and that the use of the word ‘theft’ meant nothing more than that the gallery owner was keeping money that properly belonged to the artist,” he says. “In matters like this, the result is often a bit of a crapshoot.”

In addition, Winkler says the case demonstrates the inadequacy of the judicial system when it comes to dealing with matters of reputation.

“The impact of defamatory posts, particularly online, is immediate, but here, it was not resolved until many years later,” he says. “The passage of time was so great, that both parties had probably moved on with their lives.”

If anything, Winkler notes the court case and subsequent news coverage merely rehashed a dispute that makes neither side look good.

“For the gallery owner, this was a victory with respect to the judgment, but it’s possible it did more harm than good by reminding everyone about the fact she had broken a promise to pay an artist,” he says.

The $450 the gallery owner won in costs is also likely to pale into significance with her legal fees, even though the action proceeded under New Brunswick’s simplified procedure, says Winkler, noting that both sides were represented by counsel at trial.

“From a financial perspective, everyone lost, especially when you put it in the context of a sculpture that was valued at $4,000,” he says.

Bill C-76 a poor solution to election tampering: Winkler

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Recently enacted federal laws aimed at curbing the misuse of online platforms during elections do not address the real problem, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

“Bill C-76 needs to be put into context,” says Winkler, principal and founder of Winkler Dispute Resolution. “The bill does not really relate to the type of election tampering that the media, government and public have been concerned with. It is wrong to think it will serve as a cure-all to prevent undue influence in the electoral process.”

He says the legislation requires online platforms to keep a registry of all paid political and partisan ads they carry. Google has responded by “banning political advertising on its platforms ahead of the Canadian federal election “because of new ad transparency rules it says would be too challenging to comply with,” the Globe and Mail reports.

Even if the search engine company were to comply with the legislation, Winkler says that would not be a solution to the manipulation of our political system during elections, since the bill only focuses on paid online advertising, and ignores social media.

“Anyone intent on influencing an election won’t use paid advertising,” he says. “They will use social media, which is much more difficult to track. The kind of improper influence that Russia was said to have in the last U.S. election was mostly through social media, and that does not fall within the parameters of this legislation.”

Winkler says the Canada Elections Act already requires those who are engaged in political advertising to register. That includes political parties, associations, candidates and certain third parties comprised of individuals or groups.

“The kind of transparency that is being discussed, to some extent, already exists,” he says. “There is a means of accountability, as anyone who spends more than $500 has to register with Elections Canada.”

The new tracking requirements in Bill C-76 will assist the government in the enforcement of these registration obligations, Winkler says, as the federal government will be able to compare the reports of the online platforms to its own registration database, ensuring that everyone who has purchased political advertising is registered with Elections Canada.

“It seems that the whole purpose of this legislation is to assist the federal government in enforcing provisions that are already there,” he says.

Canada could look south of the border for another solution, Winkler says, explaining that when any person or group in the U.S. registers as a third party, they are given a registration number by the U.S. Federal Election Commission, which they must provide when they purchase advertising.

“If Canada implemented the same type of system, Google and Twitter and others could demand the registration number before processing the advertising order, ensuring that anyone who is advertising is registered,” he says.

If the government wanted to regulate and monitor social media platforms, that would “raise really tricky issues,” Winkler says.

“How do we limit or control what people say on Facebook or Twitter while respecting their right to free expression and speech?” he asks.

If anyone attempted to control or regulate what is said on these online platforms, that would be viewed as censorship, Winkler says.

“The question then becomes, who will be the censor?” he says. “Should a private business determine what content should or should not be on its site? Do we want the government to be the censor of what is communicated to the public through these platforms?”

Winkler says the solution starts with clearly identifying who is behind any social media post dealing with politics.

“Where there is political speech, we should demand that the maker of the speech be properly identified,” he says. “Let’s not permit anonymous speech, but require those who want to disseminate opinions to do so with their real identities.”

When people are publicly held accountable, “what they say will be more tempered and well considered,” Winkler says. “Freedom of expression should also come with accountability.”

Supreme Court decision not such a dark day for journalists: Winkler

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Free press advocates are overreacting to a Supreme Court of Canada decision that forced a journalist to hand over materials to police, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

All nine judges upheld a previous judgment ordering a Vice Media Canada reporter to turn over messages he exchanged with a Canadian citizen allegedly involved with ISIS, prompting a number of commentaries, including by the Canadian Association of Journalists (CAJ) which called it a dark day for journalists in the country.

“This ruling is a serious setback for press freedom in Canada. It creates a chill for anyone who wants to speak truth to power or expose government wrongdoing,” the CAJ said in a statement to media.

But Winkler, principal and founder of Winkler Dispute Resolution, says the sentiment reflects an “exaggeration” of the ruling’s impact.

“In my opinion, the decision represents an appropriate balancing of the various interests at stake in the matter,” Winkler says. “I don’t think it’s a dark day for press freedom for a number of reasons.”

First, he says the judges emphasized in their decision that the case arose before the passage of the new federal Journalistic Sources Protection Act, which created a new framework for search warrants and production orders involving the media, and only came into force in October 2017.

“In terms of precedential value, it’s going to be limited, given the enaction of new legislation that provides specific protection for journalistic sources,” Winkler says.

In addition, the journalist’s source in the Supreme Court case was not one the reporter had offered confidentiality. In fact, the court found the man was keen to make contact with members of the media in order to broadcast his extremist views.

“When someone speaks or provides documents to media on the record, and there is no agreement of confidentiality, there is no reasonable expectation of privacy in respect to those communications, and they may ultimately be disclosed, whether in civil litigation or as a result of a search warrant by a policing authority,” Winkler says. “If confidentiality had been at stake and the court ruled the same way, then depending on the circumstances, I could see the media being more concerned.”

The case has its roots in articles published in 2014 by the Vice Media journalist, based largely on communications he had with a Calgary man who left the country for Turkey earlier that year and later appeared in ISIS propaganda videos.

As part of its investigation into allegations the man had participated in terrorist activity and made death threats, the RCMP obtained an ex parte production order for the journalist’s notes.

Vice’s application to quash the order was dismissed by an Ontario Superior Court judge, whose decision was in turn upheld by the province’s appeal court.

Although the nine justices were united in the result, they split 5-4, disagreeing on the extent of tinkering required to the existing test for issuing search warrants and production orders against journalists.

Writing for the majority, Supreme Court Justice Michael Moldaver dismissed the appeal, finding “the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news.”

Moldaver endorsed the framework for granting such orders laid out in a landmark 1991 case, also decided by the Supreme Court, though he added that it should be refined, reorganizing the factors to be considered, and allowing for an assessment of the effect of prior partial publication on a case-by-case basis.

In addition, the majority decision modified the standard for reviews of ex parte orders, entitling media outlets to a de novo review if they can introduce information not heard by the authorizing judge.

Winkler says journalists should be more concerned about an upcoming case slated to be heard by the top court in the new year. That involves a Radio-Canada reporter appealing an order that she identify the sources for her story on corruption in Quebec.

“I think the issues in that decision will be much more illuminating and impactful,” he says.

The trouble with USMCA’s defamation provisions

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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.

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.”

Trudeau’s gift to Google

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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.

Privacy commissioner misses mark on de-indexing

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Canada’s privacy commissioner oversimplifies the situation to suggest that “de-indexing” online links to potentially defamatory or erroneous information is possible in Canada under existing laws, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

In a recently released draft policy position, Privacy Commissioner of Canada Daniel Therrien said provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA), could be combined to force companies such as Google to remove links from search results if they include inaccurate information about an individual.

Therrien also called on the federal government to study the issue further and strengthen the tools for Canadians to manage their reputations online.

But Winkler, principal and founder of Winkler Dispute Resolution, says the draft policy oversimplifies the issue.

“The privacy commissioner’s view that existing legislation allows de-indexing misses the mark, in my opinion,” he says. “If the government, as a matter of policy, is unhappy with the way search companies operate, they will have to be the subject of further legislation.”

According to Therrien’s draft policy, PIPEDA currently requires companies to use accurate information, while providing for the ability of individuals to challenge any falsehoods. He says the two provisions can be combined and interpreted as a right for individuals to ask for information about themselves that is inaccurate, incomplete or out of date to be de-indexed.

“Such challenges should be evaluated on a case-by-case basis, and decisions to remove links should take into account the right to freedom of expression and the public’s interest in the information remaining accessible,” the policy reads. “If an individual is able to successfully challenge the search result based on the above, it should be de-indexed. However, lowering the ranking of a result or flagging a link or content as inaccurate or incomplete could be sufficient alternatives in some cases.”

But Winkler questions whether the law even applies to the activities of search engines such as Google in these instances since PIPEDA is only engaged when an entity collects, uses or discloses an individual’s personal information.

“Google is just linking to the content of others,” he says. “The more relevant issue is not Google’s responsibility, but people’s rights to force website owners to correct any false information.”

Winkler says the report also fails to account for the intricacies of defamation law when focusing on the activities of search engines. In a landmark 2011 judgment, the Supreme Court of Canada ruled that hyperlinking alone to defamatory material does not constitute publication of the content for the purposes of libel law.

“The mere provision of a link does not create liability. The privacy commissioner fails in his draft report to distinguish between the role of publisher and conduit,” Winkler explains. “In some respects, search engines are acting as a mere conduit by indexing and providing links to sites, and I don’t see PIPEDA applying in those circumstances.”

Still, Winkler says search engines may cross the publication threshold and find themselves exposed to liability if the snippets they pull from content to appear in searches contain defamatory material, especially if they have received a complaint from the subject.

“But the law is still untested in this area as to whether and when a search engine becomes a co-publisher,” Winkler says.

In addition, the privacy commissioner’s report fails to adequately distinguish between accurate and false information, he says, noting that defamation law only comes into play when a publication contains something that is untrue.

“If the linked content and Google’s snippet both contain accurate information, I don’t see how PIPEDA could be used to restrict that in any way,” Winkler says.

The law also provides defences for expressions of opinion made in good faith, he adds.

“Much of the content that people are concerned about is not necessarily to do with the accuracy of information, but rather they’re unhappy with opinions that are expressed by others. PIPEDA doesn’t apply at all to restrict expressions of opinions,” Winkler says.

He says PIPEDA contains a number of exceptions concerning personal information used or disclosed for journalistic purposes

“To the extent that one can consider the linked content being the result of a journalistic endeavour, it doesn’t come under the jurisdiction of the Act, so concerns about links to historic news articles are not going to be addressed either by the current legislation or by the privacy commissioner’s interpretation,” he says.

Another exception to the Act applies to information that is “publicly available.”

“You might argue that all information on the internet is publicly available, so for search engines to link to it can cause no legislative foul,” Winkler says.

Did the PMO overstep by asking Twitter to delete parody account?

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Toronto lawyer and mediator Howard Winkler tells Global’s 640 Toronto he’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.

At the heart of the matter was whether the account was a parody or an impersonation, but either way, the optics don’t look good, says Winkler, principal and founder of Winkler Dispute Resolution.

“I’m always concerned when the government becomes involved in attempting to persuade parties they have influence over — through their legislative power — to act in a way that’s politically beneficial to the government,” he says. “I would think that the government likely should have a hands-off policy with respect to trying to influence the content on social media.”

While Twitter does make provisions for complaints of impersonation, Winkler questions whether the PMO played “too heavy a hand,” given its power to adversely affect social media companies through regulation, pointing to a similar threat made by the prime minister last November.

The real question is whether such parody accounts are misleading, he says.

“If these sites are clearly understood by people to be parodies then to try and restrict their publication really is an attempt to restrict freedom of expression, and that’s inappropriate,” Winkler says, adding that neither the government nor Twitter itself is the best arbiter in this situation.

The third option for the PMO would have been to recognize the broad protection of freedom of expression and seldom interfere with what might be interpreted as parody rather than impersonation, Winkler says.

“Generally politicians accept that they’re fair game for critical comment, parody and whatnot. Historically, politicians have been reluctant to restrain or be seen as attempting to restrain freedom of expression,” he says.

Winkler says there’s a delicate balance between free speech and the protection of the integrity of the democratic system, both of which are important principles.

“When we get into the situation of a general election, the key is not to restrict opinion or comment, but to ensure that it’s clear who is … expressing the opinion so people can judge for themselves the credibility of it and whether they wish to rely on it,” he says.

Before the advent of social media, people stood in the public square to express their political views or criticisms of politicians without restraint, but today it’s channelled through operators such as Facebook, Twitter and Google, Winkler says.

“It creates a problem because we have private businesses that are motivated for profit essentially being the filter and the judge of what speech is going to be permitted or not permitted,” he says.

Winkler says he hopes the incident prompts further public discussion.

“It is a tough call as to whether this is an impersonation versus parody, but given the universal access to Twitter, it’s open for the individual who is arguably being impersonated to respond on the Twitter account and say, ‘hey this isn’t my account, this is a parody account.’”