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.
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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?”