By Paul Russell, LegalMatters Staff • Proposals to update Ontario’s defamation laws to reflect social and technological changes in communications brought about by the internet are mostly sound, says Toronto lawyer Howard Winkler.
In March, the Law Commission of Ontario (LCO) released its final report titled Defamation Law in the Internet Age, with its terms of reference noting, “Ontario courts and, indeed, courts throughout the world, have been gradually adapting defamation law principles to contemporary circumstances. However, legislative reform in Ontario has been limited and Ontario’s Libel and Slander Act is now significantly outdated.”
The Attorney General’s office has asked Winkler, principal and founder of Winkler Law, among others to provide feedback about the proposals and he says they will for the most part get his endorsement.
“This is a thorough, well-written report, that takes a measured approach to reform the laws of defamation, without recommending change just for change’s sake,” Winkler tells LegalMattersCanada.ca. “Of the 39 recommendations, 27 will really have little substantive effect or practical consequence, as they simply tweak existing principles. In some respects, it’s an affirmation and continuation of a combination of the existing statutory and common law.”
Three significant recommendations
Three of the remaining 12 recommendations are particularly significant, he says, the first being recommendation 38, outlining how defamatory material could be removed from the internet in an expedient manner.
“If someone believes material on a website is defamatory of them (or their business), they may deliver a notice of complaint,” Winkler says. “The website, referred to here as the intermediary, then would be obligated to send, or attempt to send, the complaint to the person who posted the content. The publisher then has two days to respond.”
“If the publisher fails to respond, the intermediary must take down the material complained of. Since many defamatory comments about businesses or individuals are posted anonymously by people deliberately hiding their true identities (and motivations) by using terminals in places such as public libraries or coffee shops, this proposal serves as an expedient way of ridding the internet of speech of little value.”
If the publisher responds opposing the take down of the material the content remains on the website, he says, as the “intermediary does not get into the business of assessing the complaint or the response.”
In addition, if the publisher is anonymous, “anonymity is protected,” Winkler says. “The injured party is then no further ahead.”
An overly restrictive definition of ‘publisher’
Which leads to recommendations 35 and 36 that he takes issue with, which deal with intermediaries and their apparent immunity from liability for defamation.
According to the report, “The new Defamation Act should provide that a defamation action may only be brought against a publisher of the expression complained of … The new Defamation Act should provide that a publisher of a defamatory expression should not be liable for republication of the expression by a third party unless the publisher intended the republication.” A publisher is then defined “to require an intentional act of communicating a specific expression.”
“I’m concerned that the LCO is rejecting the notion of liability for online platforms such as Google when they refuse to take down defamatory material after being put on notice of it,” Winkler says.
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He gives the common example of someone searching for a business name online and finding not only the company website, but also comments about the firm by other users, “since Google in its business listing, which appears on the top right of a search whether one wants it or not, encourages the posting of such reviews.”
“If there is a defamatory post about you or your business and you give notice, Google will leave it up if the person who originally published the post responds to the notice. Then the only choice you have, if recommendations 35 and 36 are adopted, is to sue the original publisher,” Winkler says.
No remedy for those defamed
The problem here is that the posting may be demonstrably false, the publisher may have responded to the complaint under recommendation 38, the publisher may have posted the message anonymously and not be traceable or out of the reach of the jurisdiction of Canadian courts, he says. This will effectively leave a wrongfully injured person with no practical remedy.
Winkler believes that under circumstances such as these, the website should not be able to escape liability for the content if it has been notified that the material is defamatory and it chooses to leave it up for the world to see.
He believes the commission should have embraced the approach taken in Australia, where courts have consistently ruled that if an online platform is put on notice of defamatory content and it chooses not to take it down, they become secondary publishers and become jointly and separately liable for it, along with the original publisher.
In 2017, the Supreme Court of South Australia ruled that website operators were liable for defamatory content on their platforms, but only after they were put on notice about it, and if they then failed to take it down.
“The ignorant should not be allowed to wreck reputations with impunity,” the 2017 judgment reads. “Once knowledge, actual or constructive, of the presence of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk … which may be made in any action brought by a primary publisher.”
Google attempted to escape liability by saying their algorithms are very complicated and that they can’t be expected to monitor and supervise all of the content made available. According to Winkler “the court rejected this argument ruling essentially that ‘It’s your business model, it’s your algorithm and so don’t complain to us that you don’t — through the deficiencies in your own business model — have the ability to control defamatory content you’re making available.’
“In my view, the Australian approach is correct, yet the commission specifically rejects it in this report and instead recommends immunity for content providers such as Google,” Winkler says. “Whether liability is to be extended to intermediaries will ultimately be a political decision left to the Ontario government.”
A missed opportunity
He also believes the LCO missed an important opportunity. He says he would have preferred if the report went further with recommendation 39, which suggests the province explore setting up an online dispute resolution platform for the resolution of certain defamation actions.
“The commission missed the opportunity to recommend the establishment of such a system and make recommendations of what it could look like,” Winkler says. “The reality is that the court process is way too slow and expensive and doesn’t provide an efficient and timely remedy to someone who is being harmed by defamatory material online.”
He says the commission could have recommended something similar to the Condominium Authority Tribunal (CAT), an online dispute resolution mechanism used to settle disputes involving those units.
With the CAT, Winker says both sides submit material to a panel of adjudicators with subject matter expertise in condominium law, who then make expedited rulings and can award limited damages.
“A similar tribunal for defamation cases would give expedited vindication for those who have been defamed. Since quick public vindication is often the most effective remedy for a harmed reputation, he believes that such a tribunal would be popular with plaintiffs and rid the overburdened court system of many actions.
“Unfortunately, the commission simply raised the prospect of this sort of mechanism, then stopped short of providing recommendations about what it could look like,” Winkler says.
Those who have been asked to comment on the report have until Aug. 1 for submissions, he says, with the province left to decide whether to accept any or all of the 39 proposals.
Originally published by LegalMatterscanada.ca on May 11, 2020