Winkler Dispute Resolution

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

Social Media

Australia proves that Google and Facebook can be tamed

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Proposed legislation in Australia to make Facebook and Google responsible for policing defamatory material on their sites is rather draconian, but I suspect it will lead to a reasonably balanced compromise that the rest of the world will want to follow.

Australia is looking at forcing online platforms to reveal the identities of people with anonymous accounts if another person complains that the material they posted is defamatory. If the online platform refuses to do that, they would assume legal liability for that material jointly with the account holder. This is based on traditional legal principles that in general anyone who is involved in the publication of false and defamatory material shares liability for any damages suffered.

Another part of the proposed legislation would make social media operators legally responsible for defamatory comments beneath publishers’ posts on their platforms.

Both initiatives are commendable in their attempts to allow people to protect their reputations. However, there are problems with both initiatives, which are easily cured.

First, there are sometimes legitimate reasons for not disclosing someone’s identity online, such as in the case of a whistleblower or the victim of abuse. Take away their anonymity and you take away their willingness to expose what could be the criminal actions or misconduct of another person or company that it is in the public interest be disclosed.

As far as making online platforms responsible for each and every comment on their sites, consider that Facebook has more than 2.8 billion users worldwide. It is easy to see why the task of monitoring every comment is simply beyond the realm of reality or reasonableness. So, too, is imposing liability on them for every post.

While the blanket liability being proposed in Australia goes too far, legislators can look elsewhere to find a more practical and well-balanced solution — such as Ontario.

In its 2020 report, Defamation in the Internet Age, the Ontario Law Reform Commission proposed a workable solution, which Ontario has so far not acted on. The commission recommended that if alleged defamatory content is posted, the complaining party can electronically advise the online provider of their objection to the post. The platform would then inform the original poster of the objection and give them a short period of time to respond. If there is no response, the post would be automatically taken down.

This simple procedure, which can be carried out electronically without any human intervention, will eliminate much low value and harmful speech from the internet that the original poster is not prepared to defend.

On the other hand, if the person who originated the post believes the material is not actionable and wants it to remain online, the platform would have an obligation to retain and safeguard the identity of that person in the event of future litigation. Their name would not be disclosed to the complainant, thus at least initially protecting the identity of a whistleblower or victim. If a legal action is then launched, a court would decide whether it is in the public interest to disclose the identity of the poster.

Checks and balances provided by the court is the key advantage of this proposed system, as compared to the blanket disclosure obligation being promoted in Australia.

Only if the service provider fails to give the notice to the original poster or fails to preserve information as to the identity of the poster, would imposing liability on the service provider makes sense.

Perhaps we must also ask ourselves if it is time to turn off the comments on Facebook. Most represent low-value speech, do not advance the public interest and present the potential for great harm. That is already happening in the mainstream media, where comments are either turned off altogether for some types of stories, or the outlet requires the poster to register and provide their full name and identification before leaving a comment.

If we did something similar across social media, it is likely low-value speech would either disappear or people’s language or comments would be tempered.

Still, I commend the Australian legislators for having the guts to advance this legislation. They are miles ahead of other jurisdictions, such as the United States and Canada, which have talked about the need to regulate social media but have failed to do anything constructive.

Australian Prime Minister Scott Morrison is quoted in media reports as saying that if Facebook left Australia over the new law, that “would be an admission that they have no interest in making the online world safe.”

I wouldn’t go that far.

I believe Facebook and other online players need financial motivation to act. The legislation proposed by Australia, or the Law Reform Commission, will provide that incentive. Only once we develop some precedent of liability on platforms and posters, will people start to change their behaviour.

To return to Australia, I’m betting the current legislation will be watered down to create something that is more nuanced and balanced, that recognizes the value of controlling defamatory speech while protecting the right to anonymous expression. Once they achieve that, Canada should get on board with similar legislation.

This article was published by Toronto Start on December 23, 2021.

Google, Facebook: Your Day of Reckoning is Coming

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Not so long ago, the mass communication of information was the domain of “trusted” media who, with the aid of writers, fact checkers, editors and publishers/broadcasters had a monopoly on distribution channels. With the advent of the Internet, and in particular with the creation of platforms like Google, Facebook and Twitter, anyone with a computer now has a voice which can be heard worldwide.

This allowed silenced voices to be heard, which was very much in the public interest, but it also facilitated anonymous malicious speech which causes immediate and devastating harm. This harm is inadequately addressed by our current litigation system which is too slow and expensive to provide meaningful mitigation of the harm done.

Much has been done to protect public interest speech, like in Canada the judicial adoption of the new defence of responsible communication and the introduction of anti-SLAPP legislation. However, little has been done to address the harm caused by the malicious and defamatory use of platforms like Google, Facebook and Twitter.

Australia, by contrast, has been proactive. There, courts and legislators are leading the way in protecting against the harm caused by low value defamatory speech on the Internet.

Recent Australian court decisions imposing liability on Google and Facebook for the content they facilitate shows how online defamatory content can be controlled. Australian courts have gone so far as, and perhaps too far in, imposing liability on account owners for the defamatory comments posted by others. Early in September, Australia’s high court ruled that online publishers using the platforms of Google and Facebook were legally responsible for the comments added to their posts by third parties, even if the stories themselves were factual and accurate.

The positive impact of all of this has been to force and coerce Google and Facebook to modify their platforms to better protect the reputations of the innocent.

After that ruling, American-based CNN asked Facebook to craft a blanket disable feature so that the news organization could avoid any legal risk. Facebook refused. CNN responded by disabling its Facebook pages in Australia. Facebook caved and gave in to CNN’s demands for a blanket disable feature in that country. The Toronto Star also recently disabled comments on its articles posted to Facebook to protect their journalists from abuse.

Australia passed legislation that forced online platforms to pay for news content they use. Google threatened to leave Australia. When that failed to have any effect, they relented and entered negotiations for the payment of royalties for their use of others’ content. Following that lead, trusted media in Canada such as the Toronto Star and The Globe and Mail have now negotiated their own compensation packages for the use of their content on Facebook’s platform.

Also in Australia, Facebook, Google and Twitter established a committee with independent oversight to combat online misinformation — but only after the government threatened legislation to achieve that goal.

In response to the legal developments in Australia, a Facebook spokesperson was recently quoted as saying “Australian defamation laws need to be reformed.”

Facebook has it quite backwards. Instead, it is Facebook, and other media platforms that can and should reform themselves to prevent the harm their platforms are causing.

Australia’s proactive efforts — by way of legislation or the threat of legislation — and the application of traditional common law principles by their courts, is forcing positive change among platforms such as Google and Facebook.

The question is: Why is the rest of the world not following Australia’s lead?

There is a global acknowledgment of the problems caused by the current functionality of Facebook, Google and Twitter.

Both the Republicans and Democrats in the U.S. have talked about repealing or modifying the blanket statutory immunity provided to website operators, but no action has been taken. In Canada, the Trudeau government has threatened to control media platforms, but they’ve really done nothing of substance to deliver on that.

In Ontario, in March of 2020, the Law Commission of Ontario delivered a Final report on Defamation Law in the Internet Age which contained many uncontroversial and helpful recommendations to deal with the harm caused by the Internet, yet the Ford government has failed to act on any of the recommendations. One of the most useful recommendations was the adoption of a notice and take down provision which would quickly rid the Internet of harmful speech which the original poster is not prepared to defend. At a minimum, this recommendation should be immediately implemented.

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

What we’re dealing with in most of these cases is low-value speech. It is either misinformation or anonymous defamatory content, which pales in importance to the right to protect one’s reputation.

I hope Canada and Ontario join Australia in efforts to force online platforms to take responsibility for the content on their sites. After all, much of the world relies on Google and Facebook for the dissemination of information. Because of that, they must be held to account for the defamatory and harmful comments that their sites allow users to freely post.

This article was published by Ontario Bar Association on December 14, 2021

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

Worldwide social media injunctions may be impossible to enforce

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 A recent worldwide injunction issued by an Austrian court against Facebook concerning intellectual property rights may prove to be just as unenforceable as a similar Canadian action involving Google, says Toronto lawyer Howard Winkler.

According to a report on TechCrunch, Austria’s Supreme Court recently ended “a long-running speech takedown case – ruling [Facebook] must remove references to defamatory comments made about a local politician worldwide for as long as the injunction lasts.”

The comments in question concern a user’s post that referred to an Austrian Green Party politician as a “lousy traitor,” a “corrupt tramp” and a member of a “fascist party,” the story states. In 2016, the woman sued the social media giant and won an injunction, banning the comments on Facebook in her own country, but she continued her legal fight at the Court of Justice of the European Union (CJEU), asking that those comments be removed globally.

Last year the CJEU decided platforms can be instructed to remove illegal speech worldwide without running afoul of European rules that preclude platforms from being saddled with a “general content monitoring obligation,” the story adds, with Facebook’s appeal of that ruling turned down in November.

Many parallels to Canadian case

“The Austrian decision bears many similarities to a 2017 Supreme Court of Canada decision,” says Winkler, principal and founder of Winkler Law.

“That case dealt with issues of infringement of intellectual property rights, with the court granting a worldwide injunction, requiring Google to cease indexing or referencing certain search results,” he explains.

Winkler tells LegalMattersCanada.ca that the rulings in both cases “attempt to extend the reach of the court outside their jurisdiction to impose a worldwide injunction against online service providers.”

And therein lies the problem, he says, explaining the plaintiff in the Canadian decision was unsuccessful in persuading a U.S, court to enforce the injunction.

“The U.S. court basically said ‘take a hike,’” says Winkler. “It made it clear it was not going to enforce the Canadian order because, under U.S. law, a similar order would likely not have been granted against Google. That’s because the U.S. Communications Decency Act provides absolute immunity to online service providers such as Google and Facebook in respect to the content of others that they disseminate.”

He notes both Republicans and Democrats in the US have recently criticized this immunity, albeit for entirely different reasons.

If the Austrian politician attempts to have the global Facebook community enforce the Austrian injunction, Winkler says she may run into the same problem.

“Though she was successful in getting a worldwide order, non-Austrian jurisdictions may refuse to, in a sense, cede jurisdiction to a foreign court,” he says.

What words are ‘identical or equivalent’?

Winkler says another interesting aspect to the Austrian decision is that it obligates Facebook “to remove … any comments that are identical or equivalent in meaning worldwide,” according to the story.

“In defamation cases, it is normal to seek a permanent injunction against the wrongdoer from repeating the defamatory comments or words of similar effect,” he says. “The plaintiff can then enforce the injunction in relation to words of similar effect by way of contempt proceedings where the court can assess whether in fact the offending words are of similar effect.”

Winkler says he represented a client in a defamation case in these circumstances.

“The words that were published by the defendant after the injunction was issued were not identical to the words complained of in the lawsuit, but close enough, so we argued that the words were of similar effect,” he says. “The court agreed and enforced the injunction, ultimately finding the defendant in contempt, for which she spent time in jail.”

Too much of an obligation

When it comes to global content providers, Winkler says it is very difficult for them to ensure they are not linking to a web page that contains similar or equivalent content to what has been found to be offensive. This, in fact, burdens them with a proactive general content monitoring obligation.

“It is one thing to say to Google or Facebook that they must delist or delete specific content, but to ask them to remove and delete words of similar or equivalent meaning, in my view, goes too far,” he says.

In relation to complaints about similar or equivalent words, Winkler says the politician should wait to see if similar or equivalent words are published by the defendant. If that happens, she could then go back to the Austrian court and asked for that new posting to be removed by Facebook and for an order of contempt against the defendant.

“Also, for an injunction like that granted by the Austrian court to be enforceable, there must be a high degree of certainty about what companies such as Facebook or Google are supposed to do,” he says. “If there is some uncertainty in that regard, for example in determining if words are similar or equivalent, the injunction would in my opinion be unenforceable.”

Originally published by LegalMatterscanada.ca on  December 8, 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

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.

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.”