How Technology Can Outpace Law Reform

By Dana Eichler and Emily Vereshchak

An attack on an individual’s character is not a new concept. People have been defaming and insulting each other for centuries. Obviously, however, the manner and nature in which defamatory statements and comments are made, has developed along with society.

A press conference on the courthouse steps gone sour was once primarily restricted to those who were actually present to hear it.[1] A controversial article in a printed newspaper or magazine had limits in the number of readers and was constricted by geography.

Over the internet, publications are instant, and far-reaching. Online newspapers, social media and blogs create a place for individuals to exercise their Charter rights and express their comments and opinions about any topic (or any person).

The common law develops at a slow pace and the Courts have long been looking for further legislative guidance on these new social circumstances. Defamation claims in the internet age have forced the Courts to adapt the common law in an environment that is subject to constant change.  However, they cannot do this alone. 

At present, the Libel and Slander Act[2]holds many values that were developed in the 19^th century. What is the Ontario Legislature to do about encouraging the right of freedom of expression in the face of vicious online publications, hateful campaigns and cancel culture?

Step in the Law Commission of Ontario (“LCO”).  The LCO is a partnership created by the Ontario Ministry of the Attorney General, the Law Foundation of Ontario, the Law Society of Ontario, Osgoode Hall Law School and the Law Deans of Ontario.

The LCO strives to provide independent, balanced and authoritative advice on some of Ontario’s most complex and far-reaching legal policy issues.  Their reports are intended to provide practical and problem-solving recommendations, informed by a comprehensive consultation process that engages a broad range of individual experts and institutions.  The LCO’s reports have been considered, and often times their recommendations implemented, in legislative, regulatory and policy amendments.

The LCO stepped up to the plate, and released a report in March of 2020 entitled: Defamation Law in the Internet Age. The report is the result of an extensive and detailed four-year project, and provides recommendations on how to best reform defamation law in response to social media and the internet.   

The LCO report and details on the consultation process from 2016 to 2020 can be found here.

It has been a year since the release of the LCO’s report, and what a year it has been. Indeed, the term “cancel culture” has become a part of our vocabulary. So, has anything changed?  What are the courts doing? What is the legislature doing?  How might these recommendations impact claims?

The LCO’s Recommendations

(a) A New Defamation Act

In their report, the LCO makes 39 recommendations in an effort to promote access to justice and to develop a regime that is relevant to defamation claims in the internet age.

One of the LCO’s fundamental recommendations is that the current Libel and Slander Act be repealed and replaced with a new Defamation Act, which would establish the legal framework for resolving defamation complaints in Ontario.  The new Defamation Act would also provide for a single tort of defamation, abolishing the distinction between libel (false statements that are published in writing or print) and slander (false statements that are spoken or by way of a gesture).

Eliminating the distinction between these categories of defamation makes sense. The LCO suggests that the distinction is outdated in our technological era and unnecessarily complicates the legal analysis.

In addition, the LCO believes the statutory meaning of “publication” must also be revised. At present, section 2 of the Libel and Slander Act states that defamatory words in a newspaper or in a broadcast shall be deemed to be “published” and constitute “libel”. This definition maintains a difference between libel and slander, and also fails to consider the role of intermediaries in content that is posted online. 

The LCO recommends that the new Defamation Act only permit defamation actions against a publisher of the expression complained of. The LCO suggests that “Publisher” should be re-defined to require an intentional act of communicating a specific expression. As such, the publisher of a defamatory expression should not be liable for republication of the expression by a third party unless the publisher intended the republication.

This new approach to publication appears more suitable for defamation in the internet age, where communications may be widely available on a variety of platforms and involve a number of parties that host content without the active intention to communicate the expression. In requiring the publication (and republication) to be intentional for defamation to occur, the LCO imposes necessary boundaries on plaintiffs and complainants from making claims against unnecessary parties and with far-reaching allegations

(b) A Notice and Takedown Regime

One of the most notable recommendations by the LCO is to develop a notice and takedown regime.  While intermediaries hosting potentially defamatory content may not be intentionally communicating a specific expression, the LCO acknowledges the role these platforms play and the control they can exert.  Further, the regime seeks to combat unidentified “internet trolls” which, as discussed further below, judges have been trying to remedy through the common law.

In an effort to resolve defamation disputes quickly and inexpensively the LCO suggests the following process:

1. The complainant would be required to serve a prescribed notice of complaint on the publisher of an alleged defamatory publication.

• The complainant can do so by notifying the intermediary platform of the defamatory material, and the platform would then be required to pass on the complaint to the publisher.
• Intermediaries would provide a link on their websites for individuals to submit defamation notices.

2. Upon being served with the notice, a publisher would have two days to respond to the notice:

• If there is no response or the publisher cannot be identified, the platform would be required to take down the offending content.
• If there is a response, the complainant would continue to pursue the issue against the publisher directly. No takedown would occur, but the publisher would be required to justify the content.

3. If the complainant wishes to pursue a court action, they must wait 4 weeks before any lawsuit is commenced.

Further, the intermediary platforms that fail in their responsibilities could be held liable for statutory damages.

The LCO’s notice and takedown procedure recognizes that the civil justice system is poorly equipped to handle online defamation claims.  It is expensive and simply too slow to address reputational harm that spreads in seconds through the digital world.  

(c) An Online Dispute Tribunal

A central concern of the LCO is that the formal court processes is expensive and inaccessible to much of the general public.  In this regard, the LCO believes that access to justice can be improved by the creation of a government-run Online Dispute Tribunal to engage in online dispute resolution (“ODR”). ODR would encourage informal resolution of disputes by agreement, where adjudicators would impose tailored responses to each unique circumstance.

In order to facilitate this process, the LCO suggests that intermediaries be required to provide a link to the ODR mechanism on their platforms. Parties would engage with an expert in the field in an attempt to diagnose the issue and negotiate a resolution without legal representation.

Thereafter, the matter could be adjudicated with legal representation (if desired) if initial conciliation efforts failed. Adjudicated decisions would have the same power as a court order, and decisions would be publicly available so that jurisprudence could develop.

(d) Interlocutory “Takedown” Orders

In the event that a matter does proceed through the Court system, the LCO recommends that reforms should be targeted towards preliminary and early action. As such, a new interlocutory “takedown” motion should be more readily available.

Interlocutory injunctions in defamation cases at present are only available in the “rarest and clearest of cases”, as they amount to a restraint of free speech. However, the LCO believes that this test is outdated and too restrictive in the case of interlocutory motions for removal of defamatory online content, due to the anonymous and far-reaching nature of these attacks.

Instead of being reserved for the “rarest and clearest” of cases that would succeed in defamation should they proceed, the LCO recommends a new legal test to obtain an interlocutory takedown order:

1. The plaintiff is required to make out a strong prima facie case of defamation;

2. The reputational harm resulting or likely to result from the expression is sufficiently serious that the public interest in granting the takedown order outweighs the public interest in protecting the expression (similar to balancing test in an anti-SLAPP motion).

According to the LCO, interlocutory takedown orders should be available against the poster, the intermediary platform hosting the expression or any third party having control over the expression, and a full evidentiary record would not be necessary.

What are the Courts Doing?

The Courts have recognized the need to address the unique circumstances of defamation on the internet for years. For some time, judges have been doing their best to adapt defamation principles in the common law with the challenges of the digital world.

In 2011, the Supreme Court of Canada in Crookes v. Newton[3]was faced with the issue of defamatory liability in the context of hyperlinking. The Court highlighted that the internet and its anonymity exponentially increase the potential and ease in which a person’s reputation could be harmed online. Even more so, the Court recognized that social networking services have created circumstances where everyone is a potential “publisher”, which is of particular concern to those unfamiliar with defamation law.[4]

The LCO has notably suggested that the ODR platform could be designed to help educate consumers and businesses who are unfamiliar with defamation law, particularly regarding allegedly defamatory online reviews. Guidance in this regard from an ODR Tribunal would also undoubtedly assist the public and their insurers in managing potential claims at an early stage.

The desire articulated by the Court for law reform appeared more recently in Emeny v. Tomaszerski, wherein Justice Sossin referenced the LCO’s 2017 consultation paper on defamation in the internet age in the context of a dispute arising from comments made on Twitter.[5]

Last year, the Court determined that defendants can still be found liable in defamation even if they have not been identified. In Theralase Technologies Inc. v. Lanter[6], Justice Myers granted default judgment against several unidentified defendants, who posted defamatory comments online using pseudonyms

In the decision, Justice Myers recognized that internet communications have the ability to cause extraordinary harm, and sought to prevent those who wish to make hurtful statements about others online from hiding behind the cloak of the internet, instead of being forced to justify their actions. 

It appears that, had the legislature adopted the LCO’s notice and takedown regime, perhaps plaintiffs such as those in Theralase Technologies Inc. v. Lanter, could have avoided the Court process altogether, and had the defamatory posts taken down quickly, without the need to incur the time and expense of taking the matter to the Court.  

In addition, the outdated Libel and Slander Act may have very well played a role in the creation of the new common law tort of on-line harassment.[7] In Caplan v. Atas[8], Justice Corbett identified that there was a need to recognize the tort of harassment in the context of a cyber-stalking case.

In referring to the LCO’s report, Justice Corbett stated that it would be “better if changes in this area of the law came from the legislature rather than a trial judge”. Ultimately, he determined that the traditional remedies available in defamation law were insufficient to address all aspects of the defendant’s conduct, such that a new tort of harassment was required.[9]

Simply put, the Court could not wait for the legislature to catch up.  Presumably, had the notice and take down provisions been in place, there would have been a more immediate and accessible means for the plaintiffs to seek cost-effective redress.

What is the Legislature Doing?

Since the release of the LCO’s report, no legislative changes have been implemented. Susie Lindsay, counsel at the LCO, has confirmed that a series of consultations took place with the government of Ontario last year, but those processes have seemingly stopped without explanation.

While the implications to victims of defamation over the internet cannot be ignored, we must also acknowledge that freedom of discourse on the internet remains fundamentally important to our society. Justice Blair writing for the Court of Appeal stated that it is a challenge to protect reputation without “unduly overriding such free wheeling public discourse”.[10]

In an attempt to maintain this harmony, the LCO notes that the development of Ontario’s 2015 anti-SLAPP (strategic lawsuits against public participation) legislation has contributed to re-balancing protection of reputation with the Charter protected value of freedom of expression.

Anti-SLAPP provisions were created to mitigate lawsuits against individuals or organizations as an indirect tool to limit freedom of expression and deter parties from participating in public affairs. The LCO has maintained that this legislation serves a necessary purpose to alleviate the common circumstance where powerful individuals and entities take advantage of defamation law as a tool to silence free speech.

At common law, where a plaintiff establishes defamation, reputational harm is presumed and the plaintiff does not need to lead evidence of general damages. As part of the test on an anti-SLAPP motion, the Supreme Court has determined that the plaintiff must still establish the existence of some harm, and that the harm was caused by the defendant’s expression (otherwise the plaintiff’s action will be dismissed at an early stage).[11]

As the LCO emphasizes that a serious harm threshold should not be adopted under the new Defamation Act, it will be interesting to see how this aspect of the test for anti-SLAPP motions will be interpreted in the future should the LCO’s recommendations be implemented.

On two recent and related anti-SLAPP motions, Justice Diamond upheld the plaintiffs’ obligation to demonstrate some harm beyond the presumption of general damages. In Levant v. Demelle[12]and Rebel News v. Al Jazeera Media[13], Justice Diamond dismissed the plaintiffs’ defamation actions, stating among his reasons that there was no evidence  of harm to the plaintiffs.

Justice Diamond found that apart from the presumption of general damages, the plaintiffs led no evidence of any particular or specific economic harm or damage to their reputation as a result of the defamatory article, and that the plaintiffs’ obligation to lead such evidence was even more necessary, given that the defendants led evidence that the plaintiffs’ reputations were poor to begin with.

While the LCO recommends that anti-SLAPP proceedings remain in an effort to address silencing tactics by commonly economically powerful plaintiffs, such motions still require the time and expense of engaging in the formal Court process.  While the facts in Caplan v. Atas and Rebel News v. Al Jazeera Media and Theralase Technologies Inc. v. Lanter may ultimately have necessitated Court action, perhaps the takedown measures or ODR could have resolved the issues short of the time and expense to the participants and their insurers.

Where is Ontario headed with defamation in the internet age?

It is hoped that the LCO’s extensive efforts, through a four-year consultation process resulting in mostly a “plug and play” practical solution for the Legislature, are not lost.  Hopefully, the Ontario Government will not only recognize, but take steps to accelerate this process and provide not only the courts with some assistance and guidance in navigating defamation cases in the internet age, but also provide individuals with direct access to justice and save all stakeholders the time and expense which necessarily comes with a full court action.  As noted, actions alleging defamation are generally followed by an anti-SLAPP motion and see significant costs incurred by all parties involved in the early stages of those proceedings.

On another note, the LCO’s current project list includes an interesting multi-year project looking at artificial intelligence (AI), automated decision making (ADM) and algorithms on access to justice, human rights and due process.  As well, there is an initiative looking at consumer protection in the digital marketplace to identify law reform options related to so-called “click to consent” or “terms of service” contracts.  These, and many other interesting initiatives and past projects, can be viewed on the LCO website.

[1] See Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130.

[2] R.S.O. 1990,c.L.12.

[3] 2011 SCC 47 at para 38

[4] Ibid at para 38

[5] 2019 ONSC 3298

[6] 2020 ONSC 205

[7] See also https://www.rogerspartners.com/the-new-tort-of-harassment/

[8] 2021 ONSC 670

[9] Ibid at para 173

[10] Berrick Gold Corp. v. Lopehandia (2004) 23 C.C.L.T. (3d) 273 (Ont. C.A) at paragraph 32.

[11] 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22.

[12] 2021 ONSC 1074

[13] 2021 ONSC 1035