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.”
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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