On September 18, 2014, the Law Commission of Ontario’s Board of Governors approved a project on defamation law in the internet age.
Defamation law is a branch of tort law that attempts to protect a claimant’s reputation from harm caused by false statements. The law seeks to strike a balance between two underlying principles: protection of reputation and freedom of expression. The core elements of defamation law were established centuries ago and there is an issue as to whether the law should be reformed to better reflect modern societal values and technological advancements.
One catalyst for reform has been the constitutional enshrinement of freedom of expression in the Canadian Charter of Rights and Freedoms. Over the past few decades, courts have responded by making incremental adjustments to defamation doctrine with the effect of giving increased weight to freedom of expression. A similar adjustment is evident in Ontario’s recent enactment of the Protection of Public Participation Act.
Another catalyst for reform is the emergence of the internet. The internet has had a profound effect on how we communicate. It instantly puts us in touch with a potentially global audience and we can speak to that audience anonymously. Increasingly, publications are electronic, whether they are in the form of a traditional media news story, a digital media news story, a blog or a social media post. This raises a host of specific issues in defamation law, including whether and when internet intermediaries should be liable for publications posted by others, when courts should assume jurisdiction over multistate internet defamation actions, whether notice provisions applicable to traditional media should be extended to others, and so on. It also raises more fundamental issues, such as who is the media, is the nature of reputation changing, is the nature of privacy changing and what is the relationship between privacy and defamation law.
For more information about this project, we invite you to sign up for updates or get in touch with the Project Head, Sue Gratton, at firstname.lastname@example.org.
- In a recent Lawyer’s Weekly article, project head Sue Gratton described the intention of the project to re-examine the balance between the values underlying defamation law – protection of reputation and the Charter right to freedom of expression – in light of social and technological developments over the past 35 years. Advisory Group member Daniel Burnett identified some key issues in the project including the issue of intermediary liability for defamatory content uploaded by others and the possibility of introducing a serious harm requirement as has been adopted in the United Kingdom. To read the article click here.
- The LCO has contributed a brief submission to the Office of the Privacy Commissioner (OPC) consultation on Online Reputation. Although the OPC project is focused on privacy rather than defamation, both of our projects seek to address the problem of online reputational harm while protecting the Charter right to freedom of expression. Our submission is intended to ensure that the OPC and LCO are aware of and may benefit from each other’s work. https://www.priv.gc.ca/information/research-recherche/consultations/2016/or/sub_or_28_e.asp”
- In August 2016, the Law Commission of Ontario released a call for research papers describing the LCO’s intention to fund several research papers for the Defamation Law in the Internet Age project, as well as the criteria and terms for funding. Paper proposals were due September 16, 2016. As a result of this call, the LCO has extended offers to fund five research papers on the topics.
What We Have Done So Far
- In the summer and fall of 2015, we began preliminary research in order to determine the parameters of the project.
- From November 2015 to March 2016, we held approximately 30 consultations with stakeholder groups including complainants in defamation actions, traditional and new media organizations, defamation lawyers and academics, government, members of the judiciary, advocacy organizations and internet intermediaries.
- In March 2016, we convened an Advisory Group that will assist the LCO throughout the project. The first Advisory Group meeting was held in April 2016.
- In June 2016, the Board of Governors approved the project methodology, which includes a project scope statement describing the issues to be addressed in the project.
- In August 2016, the LCO released a call for research papers describing the LCO’s intention to fund several research papers as well as the criteria and terms for funding. Paper proposals are due September 16, 2016.
- The LCO will prepare a consultation paper addressing a range of issues and options for reform and this will form the basis for a formal consultation process to take place in 2017.