Download the full report (PDF)                             Download the Executive Summary (PDF)

Table of Contents: HTML Version

Executive Summary

I. Introduction

II. Defamation Today: The Existing Legal Landscape

III. Defamation Law in Context

IV. The Legal Test for Defamation

V. Access to Justice and the Court Process

VI. Privacy and Its Relationship to Defamation

VII. Internet Intermediary Liability for Defamatory Content

VIII. Alternative Dispute Resolution in the Internet Era

Appendix A: List of Advisory Group Members

Appendix B: List of Questions for Consideration

Endnotes

Project Backgrounder

Press Release

Version français

________________________________________________________________________________________________________________

Executive Summary

A. The Law Commission of Ontario

The Law Commission of Ontario (LCO) is Ontario’s leading law reform agency. Our role is to conduct research, undertake public consultations, and develop reports and recommendations to improve the effectiveness, relevance and accessibility of the law. Our work promotes access to justice and contributes to public debate. Over the last 10 years, LCO projects have studied and recommended law reform in areas as diverse as disability rights, consumer protection, and vulnerable workers. More information about the LCO can be found at www.lco-cdo.org.

B. Introduction to the LCO’s Defamation in the Internet Age Project

The LCO’s Defamation in the Internet Age project considers whether or how defamation law should be reformed in light of fast-moving and far-reaching developments in law, technology and social values. This Executive Summary accompanies the LCO’s formal Consultation Paper on this project. The Consultation Paper sets out the LCO’s preliminary analysis and questions in this important area of law.

Defamation law protects reputation from harm caused by false words. The law tries to balance two fundamental yet potentially conflicting values: protection of reputation and freedom of expression. Both values are important to individuals and the functioning of a modern democracy. Both values are informed by community norms and influenced by the society in which they operate.

Defamation law has deep roots. Defamation law originated in the 17th century and the values and norms from that period continue to influence the law today. Ontario’s current defamation law developed primarily through common law supplemented by the Libel and Slander Act (LSA).[1]

Matthew Collins has argued that “[a]lmost every concept and rule in the field of defamation law … has to be reconsidered in the light of the Internet.”[2] On one level, the internet has revolutionized how we communicate. It instantly puts us in touch with a potentially global audience and we can, if we choose, speak to that audience anonymously. Publications are also increasingly electronic, whether they are in the form of a traditional media news story, digital media news story, blog or social media post. These developments have understandably had a huge impact on a law designed to regulate expression. Finally, the power of the internet to connect individuals and groups has transformed us into a networked society where communities of shared interests exist regardless of geography.

Defamation law in Ontario has not remained static in face of these developments. In recent years, both courts and legislatures have responded to important issues and concerns in order to bring defamation law into the internet age. This approach, while obviously an effective means of addressing specific defamation issues, is not a comprehensive response to the far-reaching challenges posed by “internet speech.”

This project is designed to meet that challenge. The LCO’s project is the most comprehensive analysis of Ontario’s defamation law framework to date. It is designed to analyze the underlying purpose and function of defamation law and to update the law to reflect the social and technological developments that will continue well into the future. The issues addressed in the project and the Consultation Paper include:

  • The law of defamation in Ontario today and its limitations;
  • How the legal, technological, and social landscape of the early 21st century influences and challenges “traditional” defamation law;
  • A consideration of the legal elements of defamation in light of “internet speech”;
  • Access to justice in defamation matters;
  • Privacy and its relationship to defamation;
  • Internet intermediary liability; and,
  • Alternative dispute resolution.

The answers to these issues are neither obvious nor easy. Nor is there a consensus among lawyers, governments, the media, civil society organizations, or others about how they should be addressed.

The LCO’s Consultation Paper asks important questions about these issues and seeks comments and advice from a broad range of individuals and organizations, including complainants and defendants in defamation actions, traditional and new media organizations, defamation lawyers and academics, government, members of the judiciary, advocacy organizations, internet intermediaries, online review businesses and other web platforms and others.

The Consultation Paper is part of a comprehensive research and consultation process that involves public consultations, qualitative studies, commissioned research papers, forums, an international conference and other events. More information about the project can be found at the end of the Executive Summary, in the Consultation Paper, and on our project webpage at http://www.lco-cdo.org/en/defamation-law.

C. How to Get Involved

The LCO wants to hear from all Ontarians interested in the issues in this project. Some of the questions raised in this Consultation Paper involve technical legal rules and will be of most interest to lawyers and academics. However, this project is also about some important issues that affect any Ontarian living in the internet age. There is no need for legal training to respond to the Consultation Paper.

The LCO encourages all Ontarians to consider these issues and provide us with your input. The Questions for Consideration listed in this paper are a guide to the issues identified by the LCO at this point in the project. We welcome everyone’s input on these or any other issue Ontarians believe is important. Please send us your input by March 30, 2018.

There are many ways to contribute. Please contact the LCO through any of the following methods:

Law Commission of Ontario
Osgoode Hall Law School, York University
2032 Ignat Kaneff Building
4700 Keele Street
Toronto, ON
M3J 1P3

Telephone: (416) 650-8406

Fax: (416) 650-8418

Email: lawcommission@lco-cdo.org

Web page: http://www.lco-cdo.org/en/defamation-law

Twitter @LCO_CDO

The release of this Consultation Paper launches an intensive five-month period of public consultations, during which we encourage input from all members of the public interested in these issues. During this period, we expect to hold several focus groups in concert with our community partners. We will also conduct interviews and meetings with a broad group of individuals and organizations. The LCO will host a defamation conference in 2018, culminating the consultation process.

The consultation deadline is March 30, 2018.

D. Consultation Issues and Questions

The Consultation Paper synthesizes the LCO’s considerable research and background consultations to date. The issues and questions identified in the Paper are neither final nor exhaustive. Ontarians are welcome to make submissions on any additional topic they believe is important to this project.

Chapter Two – Defamation Law Today

Chapter Two of the Consultation Paper briefly reviews the existing state of defamation law in Ontario and Canada. This review reveals notable limitations and complexities in Canadian law that suggest the need for law reform. The chapter also summarizes developments in other jurisdictions and identifies at least four general policy options for modern defamation law.

 Questions for Consideration

1. What lessons are to be learned from the law and law reform efforts of other jurisdictions on the issues in this project? How applicable are these lessons to the Ontario context?

Chapter Three – Defamation Law in Context

The LCO’s goal is to recommend defamation law reforms that reflect contemporary values and legal principles in their social context. Chapter Three of the Consultation Paper considers how the legal, technological, and social landscape of 21st century society differs from the conditions at the time defamation law was developed. This chapter begins with an examination of three important legal principles and social values: free expression, reputation and privacy.

Chapter Three also considers how defamation law has evolved over the centuries to adapt to new communications technologies. This Chapter considers several features of internet speech that, taken together, are unique and have a significant impact on how defamation law principles are applied. The Chapter further considers how the technological change represented by the internet has affected how Ontarians participate in democratic communities and how Ontarians currently understand and define media.

Questions for Consideration

2. Can or should defamation law reform in Ontario differentiate between the following and, if so, how:

  • Traditional communications and internet communications,
  • Reputational harm on the internet and reputational harm offline,
  • Different forms of internet communications,
  • Traditional media publishers, bloggers/citizen journalists and other internet publishers

3. Are there new or emerging technologies or issues that the LCO should consider when analyzing the impact of the internet on defamation? What considerations should the LCO take into account to ensure that our recommendations are likely to remain relevant as technology changes?

Technological innovation in communications necessarily influences freedom of expression. This influence has never been more apparent than in the emergence of the internet era. Chapter Three, therefore, considers the nature of online expression and its implications for the kinds of claims that engage defamation law principles today.

Questions for Consideration

4. How is our understanding of freedom of expression interests, issues or expectations different in the internet era? What, if any, significance does this have for defamation law reform in Ontario?

5. Has our understanding of truth and falsity changed in the internet era and how should this affect defamation law reform in Ontario?

The internet has caused a shift in how society understands reputation. Social norms about privacy have also fundamentally shifted with the rise of social media sites such as Facebook and Twitter as well as ever-present smartphone cameras. In this section, the LCO considers the overlap between reputation and privacy interests in the internet age.

Questions for Consideration

6. Are reputational or privacy interests, issues or expectations different in the internet age? If so, what significance does this have for defamation law reform in Ontario?

Chapter Four – The Legal Elements of the Test for Defamation

The elements of the legal test for defamation were, for the most part, established long ago. They are subject to an extensive body of case law interpreting and applying them to countless cases over a period of centuries. The LCO does not delve into the nuances of specific elements of the tort. Rather, for the purpose of this project, we have two main concerns: the overall balance struck by these elements between protection of reputation and freedom of expression, and how successfully these elements operate in the context of internet communications

The LCO’s other focus in this chapter is on the operation of the elements of the tort as applied to the new forms of defamatory communications made possible by the internet. In this chapter, the LCO reviews the various elements that make up the legal test for defamation and considers how the development of the Charter and the internet should affect any potential reforms to the law.

Defamatory Meaning

In this section we consider if the legal test for defamatory meaning should be reformed in light of the distinctions between traditional communications and internet communications. The LCO also considers whether this may be an area for legislative reform or whether the common law should continue to evolve incrementally.

Questions for Consideration

7. Would legislative reform of the test for defamatory meaning be appropriate or should this area of defamation law continue to evolve incrementally through case law? If a new test were adopted, what elements should be part of this test?

Publication

In this section, we review the traditional law of publication as it relates to both primary and secondary publishers, and then examine the application of these principles to internet publications by primary publishers. In chapter VII below, we look at secondary liability for online publications as part of a broader discussion of internet intermediaries and content regulation on the internet.

Questions for Consideration

8. Should Ontario adopt a statutory definition of “publisher” that would require an intentional act of communicating specific words? (Also see chapter VII below.)

9. Should the statutory presumption of publication in newspapers and broadcasts be extended to some forms of internet publication?

10. Should the multiple publication rule be replaced with a statutory single publication rule, as in the UK? If so, what limitation period should be applicable to defamation claims?

Strict Liability

In the next few sections, the LCO considers whether the legal elements of the tort of defamation combine to strike an appropriate balance between protection of reputation and freedom of expression. In this section, we begin by asking stakeholders to consider whether strict liability for defamation remains appropriate in the Charter era. This discussion must be considered in conjunction with the following sections and, particularly, the section on defamation defences.

Questions for Consideration

11. Should a fault requirement be introduced into the tort of defamation in Ontario? If so, at what stage of the analysis should fault be considered?

Presumption of Falsity

The presumption of falsity is a signal that defamation law strikes the balance between protection of reputation and free expression closer to the protection of reputation end of the spectrum. The question is whether the presumption of falsity is outdated in the Charter era and the internet era.

Questions for Consideration

12. Is the presumption of falsity in defamation law still appropriate? Should the law require plaintiffs to prove falsity?

13. Is defamation law’s emphasis on the distinction between true and false communications still appropriate in the internet age?

Presumption of Harm

The presumption of harm also provides very strong legal protection for reputational interests. The UK Defamation Act, 2013 has introduced a serious harm threshold which has the effect of raising the bar for a plaintiff to bring a defamation lawsuit. The LCO is considering whether Ontario should reconsider the presumption of harm and/or introduce a serious harm threshold in order to raise the bar for bringing defamation actions in this province.

Questions for Consideration

14. Is the presumption of harm in defamation law still appropriate?

15. Should Ontario adopt a serious harm threshold similar to that adopted in the UK Defamation Act, 2013?

Defences to Defamation

In this section, we briefly review defamation defences as elements in the broader balancing act between protection of reputation and free expression. We ask stakeholders to consider whether the defences require further reform or codification.

Questions for Consideration

16. Should the common law defences for defamation be reformed or codified as has occurred in the UK Defamation Act, 2013?

Court Remedies for Defamation

The goal of a defamation lawsuit is to vindicate the plaintiff’s reputation. Traditionally, this has been achieved with a damages award. However, defamation claims are often not about money, and remedies such as a retraction or a correction and apology may be more suitable in the context of internet defamation. In this section, the LCO considers traditional and emerging remedies that may be awarded in a lawsuit between a complainant and the publisher of the defamation.

Questions for Consideration

17. What principles should be applied in adapting damages awards and injunctions to internet defamation?

18. Should Ontario adopt legislation creating new remedies for defamation that more directly vindicate the reputation of a successful plaintiff and are responsive to the nature of internet defamation?

Distinction between Libel and Slander

Most provinces and territories in Canada have abolished the distinction between libel and slander. The LCO is asking for input on whether the distinction should be similarly abolished in Ontario.

Questions for Consideration

19. Should Ontario continue to maintain the distinction between libel and slander? If so, should internet communications be considered to be libel or slander?

Chapter Five – Access to Justice and the Court Process

As a law reform agency with a mandate to promote access to justice, the LCO is particularly concerned about the access to justice concerns underlying many of the issues in this project. The LCO’s goal is to re-examine key procedural issues from first principles, that is, by considering how the nature of defamation claims have changed in the internet age and identifying procedures that best achieve access to justice in this new environment. As part of this exercise, we reconsider the provisions of the LSA and recommend reforms, either to specific provisions or more far-reaching reform to the legislation as a whole.

Standing of Corporations to Bring a Defamation Action

Although the entitlement of corporations to sue in defamation is longstanding, there is a significant body of opinion arguing that protecting corporate reputation unduly impinges freedom of expression. In this section, we review the arguments for and against corporate standing to sue and ask stakeholders to consider whether there should be a change to the law in this area.

Questions for Consideration

20. Should corporations retain standing to sue for defamation in the internet age? Should they continue to be entitled to rely on the presumption of harm and presumption of falsity?

Jurisdiction and Choice of Law Over Internet Defamation Claims

In this section, the LCO considers the current test applied when courts assume jurisdiction over internet defamation actions and we review the approach taken by other. We also consider whether it would be appropriate for Ontario to reform the LSA to provide statutory guidance on defamation jurisdictional issues.

Questions for Consideration

21. What evidence is there of libel tourism or inappropriate forum-shopping occurring in Ontario?

22. Does the current common law test for assuming jurisdiction strike an appropriate balance between protection of reputation and freedom of expression? Should Ontario adopt a statutory provision similar to s.9 of the (UK) Defamation Act, 2013 for multi-jurisdictional defamation actions?

Notice and Limitation Periods

In this section the LCO reconsiders the six week notice period and the three month limitation period in the LSA, applicable to claims involving libels in newspapers and broadcasts.

Questions for Consideration

23. Should the notice period in ss. 5(1) of the LSA be eliminated from Ontario law? If not, how long should the notice period be and how long should the publisher have to respond to the notice? Should notice/retraction be made available in relation to a broader range of publications?

24. Should the special limitation period in s. 6 of the LSA be eliminated so that all defamation claims are subject to the two year general limitation period in Ontario’s Limitations Act?

Potential Procedural Reforms

The LCO invites proposals from stakeholders on potential procedural reforms for containing the costs and reducing the complexity of defamation proceedings while maintaining fairness and just outcomes.

Questions for Consideration

25. What are the best options for reducing cost and complexity and promoting access to justice in defamation proceedings?

Preliminary Motions and Hearings in Defamation Actions

In this section, the LCO considers preliminary hearings available in English defamation actions. We ask whether Ontario’s existing summary judgment mechanism is sufficient for the fair and just resolution of issues in defamation claims or whether the LCO should consider recommending preliminary hearing powers as exist in England.

Questions for Consideration

26. Is Rule 20 of the Rules of Civil Procedure an appropriate and sufficient mechanism for the preliminary hearing of issues in defamation proceedings? Should Ontario adopt UK-style preliminary issues hearings or summary disposal measures?

Strategic Litigation and the PPPA

In 2015, the Ontario government enacted the Protection of Public Participation Act, 2015 (PPPA) which put into place a fast-track motion procedure to identify and dismiss “strategic lawsuits against public participation”, otherwise known as SLAPP lawsuits. The PPPA is an important development in defamation law in Ontario. In this section, we review the fledgling case law interpreting the new procedure and ask stakeholders to consider whether the procedure strikes an appropriate balance between freedom of expression and protection of reputation.

Questions for Consideration

27. What impact has the PPPA had on the process and outcome of defamation lawsuits in Ontario? Does the PPPA achieve an appropriate balance between the interests of parties to defamation proceedings?

Role of the Jury

In this section, we ask stakeholders to reconsider the role of juries in Ontario defamation proceedings.

Questions for Consideration

28. What is current practice on the use of juries on Ontario defamation trials? Should the right to a jury trial for defamation actions be limited in Ontario?

Identifying Anonymous Defendants

Currently, a plaintiff seeking to identify an anonymous defamer may bring a Norwich motion. In this section, we review the benefits and limitations of Norwich motions. We seek input on how to balance the value of anonymous speech with the need to prevent defamers from hiding behind the “electronic curtain” to avoid being legally held to account for their actions.

Questions for Consideration

29. Does the current test for obtaining a Norwich order appropriately balance anonymous free speech, privacy interests, the value of a broad discovery process and the administration of justice? Would legislation addressing the identification of anonymous defendants be appropriate?

Anonymizing Plaintiffs

In this section, we discuss the tension that exists between the open court principle and the role of anonymization orders where complainants may be dissuaded from defamation litigation for fear of suffering additional reputational harm.

Questions for Consideration

30. What principles should be applied in deciding whether to grant anonymization orders to plaintiffs in defamation proceedings in the internet age?

Chapter VI: Privacy and its Relationship to Defamation

This chapter discusses the relationship between defamation and privacy and asks questions about how the law in Ontario can or should address the overlapping and evolving issues of reputational harm, free speech, privacy and technological change.

Questions for Consideration

31. What impact does the evolution of privacy law have on defamation? Should the LCO consider statutory reform similar to New Zealand’s Harmful Digital Communications Act?

Chapter VII: Internet Intermediary Liability for Defamatory Content

This chapter considers to what extent intermediaries should be legally responsible for content that they did not author. For the purpose of applying our existing body of defamation law to intermediaries, the crucial question is whether or not the intermediary should be considered to be a “publisher” of the defamatory content.

The questions in this section ask stakeholders to consider possible substantive reforms to the common law of intermediary liability.

Questions for Consideration

32. What principles or factors should guide the analysis of intermediary liability and how should intermediaries be categorized for this purpose?

33. In what circumstances, if any, should internet intermediaries bear legal responsibility for defamatory content created by someone else?

34. Do recommendations 1 to 3 in the Laidlaw & Young commissioned paper represent desirable reform in this area? Why or why not?

The LCO also asks whether the principles of intermediary liability in Ontario should be left to incremental development in common law or whether the law should be codified through statutory reform. We examine several statutory regimes in other jurisdictions and ask stakeholders to comment on whether some form of analogous statutory regime might be appropriate in the Ontario context.

Questions for Consideration

35. Should Ontario adopt legislative provisions regulating the role of internet intermediaries in relation to third party content?

36. If so, what kind of regulatory regime is recommended:

a. Liability-based regulation such as

i. broad immunity from liability (as in s.230 of the US Communications Decency Act) or

ii. a notice and takedown regime (as in the UK Defamation Act, 2013 or the EU Directive);

b. Regulation based on statutory penalty such as

i. a notice and notice regime (as in Canada’s Copyright Act) or

ii. a notice and notice plus regime (as in the Laidlaw & Young proposal).

Chapter VIII: Alternative Dispute Resolution in the Internet Era

The goal in this chapter is to look beyond the court system and consider whether there might be an alternative resolution mechanism that better promotes access to justice as well as fair outcomes for online defamation. We ask stakeholders to consider what relationship, if any, should exist between defamation law and online complaints processes. We also examine the possibility that some online defamation claims may be diverted to a statutory alternative dispute resolution mechanism.

Questions for Consideration

37. In your experience how successful are online complaint processes at resolving disputes over offensive online content? What role, if any, should online complaint processes play as an extra-judicial tool for resolving online defamation disputes?

38. Should a statutory dispute resolution mechanism be made available for some defamation claims as an alternative to the court process? If so, what considerations are important to its design? Should specialized rules or procedures be developed for offensive content involving children?

E. The Limits and Scope of the LCO’s Project

This project was inspired by two law reform proposals received by the LCO. The first suggested a review of defamation law principles generally. The second suggested a project focused on internet defamation. The project, as approved by the LCO Board of Governors, blends the two proposals.

The LCO has necessarily drawn some limits on the scope of the project. Importantly, the LCO will not be addressing issues of criminal defamation. The LCO is a provincial organization and criminal defamation is a matter of federal jurisdiction and therefore outside the scope of this project.

Nor will the LCO address in detail claims other than defamation that might apply in the case of harm caused by internet speech. Such related claims include injurious falsehood, misappropriation of personality, cyberbullying, online harassment, hate speech, the new European right to be forgotten and a quickly developing assortment of breach of privacy claims such as intrusion upon seclusion and public disclosure of private facts. These are each worthy of a law reform project all to itself and we cannot hope to do justice to them in this project without losing sight of our main goal to bring defamation law into the 21st century. Generally speaking, the LCO will limit its recommendations to the reform of defamation law as currently defined.

F. The LCO’s Project So Far and Next Steps

The LCO began preliminary work on this project in 2015 and 2016. During this period, the LCO undertook research and conducted roughly 35 preliminary interviews of people from a broad range of stakeholder groups, including complainants in defamation actions, traditional and new media organizations, defamation lawyers and academics, government representatives, members of the judiciary, advocacy organizations, internet intermediaries and online review businesses.

In 2016, the LCO organized an expert Advisory Group representative of key stakeholder groups to provide ongoing input and support for the project. Advisory Group members include:

  • Ian Binnie, C.C., Q.C., Lenczner Slaght Royce Smith Griffin
  • Dan Burnett, Owen Bird Law Corporation
  • Jamie Cameron, Osgoode Hall Law School
  • Peter Downard, Fasken Martineau DuMoulin
  • Kathy English, The Toronto Star
  • David Fewer, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic
  • John D. Gregory, Retired General Counsel, Ministry of the Attorney General
  • Emily Laidlaw, University of Calgary, Faculty of Law
  • Brian MacLeod Rogers
  • The Honourable Wendy Matheson, Superior Court of Justice of Ontario
  • Roger McConchie
  • Tom McKinlay General Counsel, Crown Law Office – Civil, Ministry of the Attorney General
  • Julian Porter, Q.C., Professional Corporation
  • David Potts
  • Paul Schabas, Blake, Cassels & Graydon LLP
  • Andrew Scott, London School of Economics
  • Joanne St. Lewis, University of Ottawa, Faculty of Law
  • Hilary Young, University of New Brunswick, Faculty of Law

The LCO issued a Call for Research Papers in August 2016 and subsequently commissioned five research papers addressing specific issues and bringing important insights to the project. These papers are:

  • Dr. Emily B. Laidlaw, Are We Asking Too Much From Defamation Law? Reputation Systems, ADR, Industry Regulation and other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age.
  • Dr. David Mangan, The Relationship between Defamation, Breach of Privacy and Other Legal Claims Involving Offensive Internet Content.
  • Professor Karen Eltis of the Faculty of Law, University of Ottawa, Is “Truthtelling” Decontextualized Online Still Reasonable? Restoring Context to Defamation Analysis in the Digital Age.
  • Dr. Emily B. Laidlaw and Dr. Hilary Young, Internet Intermediary Liability in Defamation: Proposals for Statutory Reform.
  • Jane Bailey and Valerie Steeves, Co-Leaders of the eQuality Project, University of Ottawa, Defamation Law in the Age of the Internet: Young People’s Perspectives.

The commissioned papers are available at the LCO’s website: http://www.lco-cdo.org/en/our-current-projects/defamation-law-in-the-internet-age/final-commissioned-papers/.

The LCO has also engaged law students at the University of New Brunswick, Faculty of Law and the University of Calgary, Faculty of Law to conduct a series of interviews of youth on the issues in this project.

The release of this Consultation Paper launches an intensive five-month period of public consultations, during which we encourage input from all members of the public interested in these issues. During this period, we expect to hold several focus groups in concert with our community partners. We will also conduct interviews and meetings with a broad group of individuals and organizations. The LCO will host a defamation conference in 2018, culminating the consultation process.

We expect to receive formal submissions from organizations and individuals but we also encourage informal input from the public by any form of communication: email or phone, blog, Facebook post, Twitter post and so on. The deadline for submissions is March 30, 2018.

Any questions or comments can be directed to Sue Gratton, Project Head, at sgratton@lco-cdo.org or to:

Law Commission of Ontario
Osgoode Hall Law School, York University
2032 Ignat Kaneff Building
4700 Keele Street
Toronto, ON
M3J 1P3

Telephone: (416) 650-8406

Fax: (416) 650-8418

Email: lawcommission@lco-cdo.org

Web page: http://www.lco-cdo.org/en/defamation-law

Twitter @LCO_CDO

 

——————————————————————————–

[1] LSA.

[2] Matthew Collins, The Law of Defamation and the Internet, 3d ed (Oxford: OUP, 2010), 35 [Collins, Defamation & Internet].

 

Top of the page

 

________________________________________________________________________________________________________________

I. Introduction

A. Introduction to the LCO’s Project

This is the Law Commission of Ontario’s (LCO) consultation paper for our Defamation in the Age of the Internet project. This paper sets out the LCO’s preliminary analysis and questions in this far-reaching and important area of law.

Defamation law is designed to protect reputation from harm caused by false words. The law tries to balance two conflicting values. On the one hand, protection of reputation has been recognized as a quasi-constitutional value by the Supreme Court of Canada.[1] On the other hand, there is express constitutional protection for freedom of expression under the Canadian Charter of Rights and Freedoms.[2]

Both values, reputation and freedom of expression, are informed by community norms and context for their content, so that defamation law is particularly sensitive to and influenced by the society in which it operates. The problem is that our current body of defamation law was largely developed by the 17th century and, therefore, influenced by the community norms and context of that time. In the 17th century, reputation was valued as property to be protected through litigation as with any other property right, and the same set of social values were shared among a wider segment of society.

In contrast, today’s society is relatively pluralistic and diverse, grounded in principles of equality and individual freedoms. Our ideas about reputation and freedom of expression have evolved accordingly in response to social and legal forces such as the constitutional entrenchment of freedom of expression, human rights, globalization and the development of mass communications. Defamation law has evolved in response to these developments on a case by case basis, supplemented periodically with legislation.

Even prior to the internet, many commentators believed that defamation law was complex, inconsistent and confusing. It has been likened to “Frankenstein’s monster”; a body of law that, even a century ago, was already considered unstable and in need of reform.[3]

The emergence of the internet in the early 1990s has had a profound impact on defamation law. On one level, the internet has revolutionized how we communicate. It instantly puts us in touch with a potentially global audience and we can, if we choose, speak to that audience anonymously. Publications are also increasingly electronic, whether they are in the form of a traditional media news story, digital media news story, blog or social media post. These developments in the nature of expression have understandably had a huge impact on a law designed to regulate expression. And the power of the internet to connect individuals and groups has transformed us into a networked society where communities of shared interests exist regardless of geography. This has influenced our understanding and expectations of reputation and privacy and called into question some of the underlying premises of defamation law.

The LCO’s project is the most comprehensive analysis of Ontario’s defamation law framework to date. The last major law reform initiative in this area was carried out by an Ontario Ministry of the Attorney General Advisory Committee in 1990. The Committee undertook a broad review of the law but made only modest recommendations and these were not implemented.[4]

The LCO’s project is designed to analyze both the underlying purpose and function of defamation law and how that law can be updated to reflect the social and technological developments that will continue well into the future. This Consultation Paper asks key questions about these issues and seeks comments and advice from broad range of individuals and organizations interested in these issues, including but not limited to complainants and defendants in defamation actions, traditional and new media organizations, defamation lawyers and academics, government, members of the judiciary, advocacy organizations, internet intermediaries, online review businesses and other web platforms and others. This paper is part of a comprehensive research and consultation process that involves public consultations, qualitative studies, commissioned research papers, forums, an international conference and other events. More information about the project can be found at our webpage: http://www.lco-cdo.org/en/defamation-law.

B. About the LCO

The Law Commission of Ontario (LCO) is a unique, innovative and productive partnership between the provincial government, the Law Foundation of Ontario, the Law Society of Upper Canada, Osgoode Hall Law School and the Law Deans of Ontario, The LCO was established in 2007. The five-year agreement that created the LCO has been renewed twice.

The LCO provides independent, balanced and authoritative advice on some of Ontario’s most complex and far-reaching legal policy issues. The LCO evaluates laws impartially, transparently and broadly. The LCO’s work is informed by legal analysis; multidisciplinary research; public consultations; social, demographic and economic conditions; and the impact of technology.

LCO reports include principled, practical, “problem-solving” recommendations that are informed by broad consultations and tested through a transparent, comprehensive review process that engages a broad range of individuals, experts and institutions. The LCO gives a voice to marginalized communities and others who should have an important role in law reform debates and discussions. Over the last five years, the LCO has engaged with thousands of Ontarians on law reform projects.

LCO reports have led to legislative amendments and policy changes, promoted access to justice and contributed significantly to public debates surrounding important law reform issues.

C. How to Get Involved

The LCO wants to hear from everyone interested in the issues in this project. Some of the questions raised in this Consultation Paper involve technical legal rules and will be of most interest to lawyers and academics. However, this project is also about some important issues that affect all of us living in the internet age. There is no need for legal training to answer these questions. There is no need to even be an internet user. These questions involve the importance you place on reputation and privacy in the internet era, how the law should protect these, what freedom of expression means to you and the degree to which limits should be placed on freedom of expression in order to protect reputation. We encourage all Ontarians to think about these issues and provide us with your input. The Questions for Consideration listed in this paper are a guide to the issues we are addressing but you do not have to answer these specific questions. We welcome your input on any of the issues in the project that you think important.

There are many ways to reach us. You can send in a submission by mail but you can also send us an email or give us a call. Also consider blogging or tweeting about the issues on social media in order to expand the conversation. Please send us your input by March 30, 2018.

Contact Us

Law Commission of Ontario
Osgoode Hall Law School, York University
2032 Ignat Kaneff Building
4700 Keele Street
Toronto, ON M3J 1P3

Telephone: (416) 650-8406

Fax: (416) 650-8418

Email: lawcommission@lco-cdo.org

Web page: http://www.lco-cdo.org/en/defamation-law.

Follow us on Twitter @LCO_CDO

D. Scope of the LCO’s Project

This project was inspired by two law reform proposals received by the LCO. One suggested a review of defamation law principles generally. The other suggested a project focused on internet defamation. The project, as approved by the LCO Board of Governors, is a blend of these proposals. The internet is the unavoidable backdrop for any meaningful law reform exercise. Accordingly, the LCO will examine defamation law taking into account, first, that the internet is now the arena in which much, if not most, defamation occurs and, second, that the internet has had an unprecedented impact on the two core values underlying defamation law: freedom of expression and protection of reputation.

Here are some of the issues the LCO will consider in this project:

  • The LCO will examine some core elements of the common law defamation tort, such as its imposition of strict liability and its presumptions of falsity and harm. Some of these elements have been modified in some jurisdictions by statutory reform. They have also been affected by common law efforts to bolster the defences available in defamation actions in order to provide added protection for freedom of expression in the Charter age. The LCO will consider whether the time has come to reform the traditional foundations of defamation law in order to adjust the balance between freedom of expression and protection of reputation.
  • The LCO will consider whether the law on defamatory meaning requires reform in light of the differences between traditional forms of communication and a
  • myriad of new methods of and venues for communicating over the internet.
    The LCO will consider how best to adapt defamation law to specific procedural issues that have arisen both before and during the internet era. These include, among other things, notice periods and the single publication rule, identification of anonymous posters for the purpose of bringing an action and the counter-productive effect of bringing an action only to further publicize the defamation and exacerbate reputational harm. More specifically, we will consider reforms to Ontario’s Libel and Slander Act (LSA).[5]
  • The LCO will consider how the traditional legal rules around what is a publication in defamation law should be adapted to address internet publications, and in what circumstances online actors including bloggers, web moderators, internet service providers and others should be legally responsible as publishers for third party content.
  • The LCO will consider if or how current law on the jurisdiction of Ontario courts to hear multistate defamation actions should be coordinated with the law of other jurisdictions, particularly in response to a perceived concern about libel tourism
  • The LCO will consider whether a broader range of defamation remedies is warranted in the age of the internet to overcome limitations in the traditional remedy of damages and to decrease the cost of legal proceedings and promote access to justice.
  • The LCO will also consider whether we should look beyond the courtroom to remedy some forms of internet defamation. We will explore possible forms of alternative dispute resolution (ADR), online complaints processes and government regulation among other things.

Many issues raised in this project are concurrently being examined by jurisdictions around the world. The very nature of the internet is to transcend geographic boundaries and the LCO will need to consider how possible directions of law reform in Ontario will affect and be affected by developments internationally. For example, a number of countries are currently grappling with the role of internet intermediaries, like Facebook and Google, for example, in facilitating internet communications and the degree of legal responsibility they should have for offensive internet content.[6] Defamatory communications are only one subset of this broader issue and we consider defamation law reform in the context of this quickly developing, international debate.

The LCO has necessarily drawn some limits on the scope of the project. Importantly, the LCO will not be addressing issues of criminal defamation. Section 300 of the Criminal Code prohibits the publishing of defamatory material that the person knows is false.[7] Many questions arise about the scope of this offence and its relationship to common law defamation.[8] However, the LCO is a provincial organization and criminal defamation is a matter of federal jurisdiction and therefore outside the scope of this project.

Another important limit on the scope of the project is more difficult to articulate. Defamation is one of several legal claims that might apply in the case of harm caused by internet speech. Other possibilities include injurious falsehood, misappropriation of personality, cyberbullying, online harassment, hate speech, the new European right to be forgotten and a quickly developing assortment of breach of privacy claims such as intrusion upon seclusion and public disclosure of private facts.[9] Some of these claims have resulted from or been heavily influenced by the rapid advance of the internet age and are currently the subject of intense public and political interest. They are each worthy of a law reform project all to itself and we cannot hope to do justice to them in this project without losing sight of our main goal to bring defamation law into the 21st century. Generally speaking, the LCO will limit its recommendations to the reform of defamation law as currently defined. This approach is consistent with the LCO’s mandate to develop practical recommendations that can be implemented in order to improve the law as it is currently functioning. However, the LCO will be cognizant of the values underlying these related claims and the mechanisms used to remedy them may be relevant in searching for analogous solutions in defamation law.

It is particularly difficult to draw a neat doctrinal boundary between defamation law and privacy law. Some breach of privacy claims are so closely intertwined with defamation claims that examining them in isolation does not make sense. Therefore, although the project focuses on false speech – the traditional realm of defamation law – we have expanded our analysis to examine related privacy claims (which may involve true speech) as we have considered necessary. More specifically, we examine breaches of informational privacy that involve some form of disclosure or publication and that, most closely, resemble the kinds of values and interests engaged in defamation law.

E. Overview of the LCO’s Process

The LCO Board of Governors approved this project in late 2014. The LCO developed the project and conducted preliminary research during the summer and fall of 2015.

Between November 2015 and October 2016, the LCO conducted roughly 35 preliminary interviews of people from a broad range of stakeholder groups, including complainants in defamation actions, traditional and new media organizations, defamation lawyers and academics, government representatives, members of the judiciary, advocacy organizations, internet intermediaries and online review businesses.

In March 2016, the LCO organized an expert Advisory Group representative of key stakeholder groups to provide ongoing input and support for the project. Advisory Group meetings were held in April and December 2016 and January, July and October 2017.

The LCO issued a Call for Research Papers in August 2016 and subsequently commissioned five research papers addressing specific issues and bringing important insights to the project. These papers are:

  • Dr. Emily B. Laidlaw, Are We Asking Too Much From Defamation Law? Reputation Systems, ADR, Industry Regulation and other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age.
  • Dr. David Mangan, The Relationship between Defamation, Breach of Privacy and Other Legal Claims Involving Offensive Internet Content.
  • Professor Karen Eltis of the Faculty of Law, University of Ottawa, Is “Truthtelling” Decontextualized Online Still Reasonable? Restoring Context to Defamation Analysis in the Digital Age.
  • Dr. Emily B. Laidlaw and Dr. Hilary Young, Internet Intermediary Liability in Defamation: Proposals for Statutory Reform.
  • Jane Bailey and Valerie Steeves, Co-Leaders of the eQuality Project, University of Ottawa, Defamation Law in the Age of the Internet: Young People’s Perspectives.

The commissioned papers are available at the LCO’s website: http://www.lco-cdo.org/en/our-current-projects/defamation-law-in-the-internet-age/final-commissioned-papers/.

In addition to the commissioned study conducted by Jane Bailey and Valerie Steeves on youth and the digital age, the LCO has also engaged law students at the University of New Brunswick, Faculty of Law and the University of Calgary, Faculty of Law to conduct a series of interviews of youth on the issues in this project.

The release of this Consultation Paper launches an intensive five-month period of public consultations, during which we encourage input from all members of the public interested in these issues. During this period, we expect to hold several focus groups in concert with our community partners. We will also conduct individual interviews as necessary. In spring 2018, we will host an international conference on some key issues in the project, culminating the consultations process. We expect to receive formal submissions from organizations and individuals but we also encourage informal input from the public by any form of communication: email or phone, blog, Facebook post, Twitter post and so on. The deadline for submissions is March 30, 2018.

F. The LCO’s Perspectives in Approaching the Project

The LCO has not reached any conclusions about its potential findings or recommendations in this area. Nevertheless, readers should be aware of important assumptions or perspectives that will guide the LCO’s work on this project:

1. Independence and Impartiality

Stakeholders often bring certain perspectives, experiences or interests to debates about complex law reform issues. By way of contrast, the LCO provides independent and balanced analysis to complex and important legal policy issues. The LCO evaluates laws impartially, transparently and broadly.

Defamation law tends to engender polarized views between those primarily concerned with freedom of expression (defendants in a defamation action seeking to protect their right of free speech) and those primarily concerned with protection of reputation (plaintiffs in a defamation action seeking to protect their reputation).

Traditionally, many if not most defendants of defamation claims have been media organizations. The media have numerous organizations representing their interests. And legal practitioners who represent media defendants are often specialists in advocating the pro-freedom of expression point of view. Experience demonstrates, however, that it is more difficult to connect with individuals primarily concerned with protecting reputation. Prospective plaintiffs in a defamation action come from all walks of life and there are few organized groups representing their interests. The resulting evidentiary disparity is to some extent unavoidable and has been recognized in earlier reform efforts.[10] As one law reform commission stated rather bluntly,

One difficulty about consulting people about the law of defamation is that prospective defamers are better organized and more articulate than prospective plaintiffs. A newspaper company knows where the shoe pinches and has the experience and resources to put its views persuasively. No one has put anything to us which is intentionally unfair to plaintiffs, but it is natural that the plight of a defendant should be seen in strong colours by people who have many times been defendants.[11]

The LCO will strive to hear from all stakeholders and take into account all points of view in formulating our recommendations in this project.

2. Contextual and Multidisciplinary Approach

The LCO’s work is informed by legal analysis; multi-disciplinary research; contemporary social, demographic and economic conditions; and the impact of rapid technological change. The LCO gives a voice to marginalized communities and others who are often left out of important law reform debates and discussions.

Past defamation law reform has tended to start from a foundation of existing legal principles with reform largely confined to this doctrinal framework. The LCO has determined that a broader perspective is necessary in this project, particularly in light of the overlapping legal claims that may be applied to harmful internet content. Individuals suffering reputational harm as a result of online speech will not typically care what legal label is attached to their claim. A broader perspective is warranted in order to consider other legal mechanisms for regulating internet content and what role defamation law should play in this larger context. Although the LCO will apply this contextual approach, our recommendations will be directed specifically at defamation law.

3. Access to Justice

The LCO has a mandate to promote access to justice. Accordingly, the LCO will consider access to justice issues in this project. Surprisingly, there is very little literature on the principle of access to justice as applied to defamation actions, except in the context of strategic litigation against public participation (SLAPP suits) which we will discuss in chapter V. However, access to justice issues abound in the law, particularly given the high cost of civil actions and the relatively limited efficacy of traditional remedial options.

4. Comparative Law Approach

This project involves a number of novel legal issues that have arisen as a result of the internet’s profound impact on human communications. These issues are currently being explored in countries around the world. From a comparative law perspective, there is a great deal to be learned from other jurisdictions, common law and civil law alike. But, we have an even more direct interest in the international legal landscape in this project. The very function of the internet in interconnecting individuals and communities across geographic boundaries means that Ontario defamation law will be increasingly influenced by law elsewhere. Other countries are also currently contemplating reform.[12] Therefore, a multi-jurisdictional approach to this project is imperative.

5. Principled and Problem-Solving Approach

LCO reports include principled, practical, problem-solving recommendations that are informed by broad consultations and tested through a transparent, comprehensive review process that engages a wide range of individuals, experts and institutions. For example, in spite of some inherent limitations of court actions as a model for remedying defamation claims, defamation reform efforts in the past have tended to focus on court actions only. The LCO adopts a broader perspective in this project to consider whether there may be practical ways to deal with some defamation claims outside the court system.

6. Technological Neutrality

It is important in adapting defamation law to the internet age to avoid social or moral judgments about the technological impact of the internet on society. Early case law, such as Barrick Gold, arguably adopted a pessimistic view of the internet age, emphasizing the new potential for reputational harm.[13] Some commentators have criticized this and have suggested that a balanced view of the internet and its impact on defamation law is one that recognizes the value of internet to free speech as well as its dangers.[14] The LCO seeks to develop recommendations that are neutral as to the technology used to publish communications and that recognize, for better or worse, that the internet is an important part of our future.

G. The Variety of Defamation Law Claims

It is trite to say that the purpose of defamation law is to protect against reputational harm arising from false publications. However, reputational harm may mean something very different in different fact scenarios. One of the challenges in understanding defamation law is that it seeks to apply a uniform set of legal principles to regulate reputational harm in very diverse circumstances. Putting aside legal principles for the moment, it is worthwhile to consider in what circumstances people bring defamation claims in the 21st century?

A review of the facts behind numerous Canadian defamation cases suggests that they can often be roughly divided into three types:

Actions Between Individuals – These claims are relatively frequent notwithstanding the legal costs of bringing and defending them that might be expected to exceed the resources of many individuals.[15] They tend to involve underlying disputes that escalate, become personal and sometimes nasty. Driven by emotion, these claims bear some resemblance to family law disputes or estate litigation. Some defamation actions involving businesses may actually be motivated by personal interests rather than commercial interests.

Actions Motivated by Commercial Interests – In these cases, the alleged harm is to business reputation and the plaintiff will typically do a cost-benefit analysis before proceeding with a claim. Several authors have questioned the appropriateness of allowing corporations to use defamation law to protect economic interests, pointing to the inconsistency in the underlying rationales of these two causes of action.[16]

Actions Brought Against Media or Other Public Interest Publishers – These cases involve any claims brought against media, academic or other public interest publishers. There are societal interests at play in these cases that are distinct from other types of cases. They engage distinct legal principles designed to protect the important role of media in reporting in the public interest.

Of course, these three scenarios cannot possibly capture the full range of fact situations and circumstances that must be addressed in reforming defamation law and any reforms must be general and flexible enough to address all of these. However, in thinking about the ideas discussed in this paper, it is helpful to test them against these highly distinct factual scenarios as a sort of litmus test to ensure that the diverse interests underlying defamation law are being adequately considered.

The LCO’s intent is that by keeping sight of the variety of defamation law claims that arise in today’s society, we may develop pragmatic as well as principled reforms to Ontario defamation law that allow it to meet the purposes for which it is currently being applied.

Top of the page

 

________________________________________________________________________________________________________________

II. Defamation Today: The Existing Legal Landscape

In this chapter, we briefly review the existing state of defamation law in Ontario and elsewhere as well as the main reform efforts to date. This review reveals notable limitations and complexities in the law that suggest the need for law reform.

A. Ontario (and Common Law Canada)

Ontario defamation law has developed primarily through common law supplemented by the Libel and Slander Act (LSA).[17] The elements of the tort are substantially similar in most common law jurisdictions with the exception of the United States. In order to make out a claim of defamation, a plaintiff must establish three things:

  • that the words in issue refer to the plaintiff;
  • that they were published to a third party; and
  • that they are defamatory in the sense that they tend to lower the plaintiff’s reputation among reasonable persons in the community.

Where these elements are made out, the law presumes that the words are false and that they caused the plaintiff harm. A finding of fault is not necessary in order to establish defamation.

This threshold for establishing defamation is low. A lot of the “work” of the tort takes place in determining whether one of a list of defences may apply. Possible defences include justification (the words were substantially true), absolute or qualified privilege, fair comment and responsible communication, among others. For some of these, the plaintiff may rebut the defence by proving that the defendant acted maliciously.

The LSA originally dates from 1877 but in its modern form is largely based on the English Defamation Act, 1952.[18] The LSA is an assortment of specific provisions designed to supplement the common law. The language of the Act is antiquated in places and it does not address key technological innovations such as the internet. Practically speaking, the most important provisions of the Act are its notice requirements and limitation periods in respect of defamation in a newspaper or broadcast.[19] The intent is to give newspapers and broadcast stations an opportunity to correct, retract or apologize for false statements in order to contain their exposure to damages.

To date, defamation law reform in Ontario and, indeed, in Canada has been limited. In the early 1980s, the Uniform Law Conference of Canada (ULCC) decided to reform the existing Uniform Defamation Act dating from 1944.[20] The Conference interpreted its task narrowly, as “clarifying and balancing the concepts of defamation law which currently exist”.[21] Nevertheless, it made a number of substantive recommendations in response to evolving case law and technology. For example, it recommended that a definition of “defamatory matter” be included in the legislation (but without reference to the element of falsity).[22] And it recommended procedural changes such as clarification on who can bring claims (groups, relatives of deceased individuals and so on) and a limitation period of six months. This report eventually led to the updated 1994 Uniform Defamation Act.[23]

A 1985 Report of the British Columbia Law Institute (BCLI) relied on the ULCC Report in recommending a new draft Defamation Act for that province.[24] However, no legislative reform followed.[25]

Ontario’s last reform project on defamation law took place 25 years ago. An Advisory Committee appointed by the Ministry of the Attorney General (MAG) described the law as a combination of “ancient rules and procedures with nineteenth century precepts and twentieth century remedial patchwork”.[26] It reconsidered defamation law principles in light of the Charter’s guarantee of free expression. The Committee focused particularly on traditional media organizations and whether the law should provide them with increased protection from defamation suits so that they could practice responsible journalism. Although no legislative reform followed the Committee’s Report, the Supreme Court of Canada (SCC) eventually heard this call, developing the responsible communication defence and enhancing the fair comment defence in order to better protect responsible journalism and other forms of public interest communication.[27]

The MAG Committee also raised more fundamental issues of defamation law reform, including its strict liability nature, the presumption of harm and presumption of falsity. However, the Committee did not reach consensus on these issues and did not develop recommendations.[28] In this project the LCO is re-examining some of these fundamental principles.

At the time of the MAG Committee’s Report, the internet had not yet emerged as the predominant forum for communication and its recommendations must be seen through this lens. For example, the MAG Committee Report focused primarily on defamation law as it applies to traditional media publications. However, the internet now allows anyone and everyone to be a publisher, thereby blurring the line between media and non-media publications. This gives rise to new questions such as whether LSA notice and limitation period protections should be extended to publishers other than traditional media.

In 2010, another panel was struck in Ontario, this time to consider the possibility of legislating protection against strategic lawsuits (known at SLAPP lawsuits) that place undue limits on freedom of expression in relation to matters of public interest. The Panel specifically addressed how the proposed legislation would operate in the context of defamation. It suggested ways to balance the aims of the legislation with the case law on defamation defences, and it explicitly recommended that corporations’ and politicians’ right to sue for defamation not be restricted.[29] The panel’s recommendations led to the 2015 enactment of the Protection of Public Participation Act (PPPA).[30] The PPPA creates a pre-trial process for identifying and dismissing SLAPP lawsuits that place undue limits on freedom of expression by individuals or organizations on matters of public interest.[31] Importantly, the scope of the new Act is confined to SLAPP lawsuits and it does not purport to reform defamation law generally.

Also, in recent years Canadian courts have been interpreting defamation law to better protect the Charter right to freedom of speech and to address internet communications. In WIC Radio v. Simpson [2008], the SCC reformulated the fair comment defence to protect a radio broadcast comparing an anti-gay activist to Hitler.[32] In Grant v. Torstar [2009], the Court created a new defence of responsible communication to protect defamatory communications made responsibly in the public interest.[33] The Court noted the changing context brought about by the internet, suggesting that the law must adapt accordingly:

…many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media.[34]

In 2012, the SCC issued a trilogy of decisions addressing jurisdictional issues in multi-state tort claims. Two of the decisions involved defamation claims commenced in Ontario. In both cases, the SCC held that the plaintiff was entitled to bring the claim in Ontario where the alleged defamatory material was made available in Ontario even though originally published elsewhere.[35] However, in both cases the Court acknowledged that one element of the forum non conveniens analysis, the law applicable to the tort, remains unsettled in defamation law.[36] Although a concern for “libel tourism” (complainants strategically suing in jurisdictions perceived to have plaintiff-friendly defamation laws) also arose in both cases, the Court did not address this issue at any length.[37]

In Crookes v. Newton [2011], the Court considered the nature of hyperlinks, holding that they do not amount to a publication of the information to which they link, for the purpose of attracting liability.[38] The Court signaled in this decision the importance of adapting traditional defamation law principles in a way that does not stifle the development of the internet:

Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.”[39]

Notwithstanding these decisions, the SCC has not yet had the opportunity to deliberate on many of the issues specific to internet communications. The Court has acknowledged that there is much work still to be done in adapting defamation law to internet technologies as they continue to evolve.[40]

Ontario courts are also regularly grappling with internet defamation cases.[41] For example, in Goldhar v. Haaretz.com [2016], the Court of Appeal divided on the appropriate test for assuming jurisdiction in a multi-state internet defamation case.[42] In Shtaif v. Toronto Life [2013], the Court of Appeal indicated its view that legislative reform, particularly of the LSA, is warranted.[43]

An important question for the LCO project is whether common law or legislative reforms are the best approach to address the complexity of defamation law in the age of the internet.

B. Other Jurisdictions

As noted earlier, the LCO project is the first to comprehensively consider defamation law in Canada in the last 25 years. Defamation law reform is an international issue spanning many jurisdictions and legal traditions. These developments provide the LCO will both an opportunity and a challenge: On the one hand, many of these jurisdictions hold lessons for defamation law reform in Ontario. On the other hand, defamation law is inherently grounded in local norms and values. Therefore, the LCO must analyze foreign developments against the need for a made-in-Ontario response to these issues.

1. United Kingdom and Ireland

English defamation law has traditionally been the model for defamation law in Ontario and other common law Canadian provinces and legal doctrine in both countries has largely overlapped. A series of reform efforts in the United Kingdom has been reflected to varying degrees in Ontario law.

For example, in 1948, the Porter Committee considered complaints that defamation actions were too costly, complex and unpredictable, and that the existing law favoured “gold-digging” plaintiffs at the expense of innocent defamers. Even then there was a concern that the law was too restrictive of free speech.[44] The Committee considered but rejected the idea of codifying defamation law.[45] It did recommend extending the current law to broadcasting (in addition to newspapers). Otherwise, the Committee concluded that “drastic changes in the substantive law” were unnecessary and, instead, some “pruning” and simplifying were appropriate.[46] The Committee’s recommendations were largely incorporated into the U.K. Defamation Act, 1952. Many also found their way into Ontario’s LSA in a 1958 amendment.[47]

In 1975, another report on the state of UK defamation law was undertaken by the Faulks Committee.[48] Two of the Committee’s key recommendations were to abolish the distinction between libel and slander and establish a statutory definition of defamation. Otherwise, the Committee mainly tinkered with the existing law. The report did not result in immediate legislative changes although it has been referenced in the common law development of UK defamation law.[49]

An extensive reform process in the UK preceded the enactment of the Defamation Act, 2013.[50] This was motivated, in large part, by a concern that the existing law did not adequately protect freedom of expression, particularly in the context of public interest reporting by the media. A draft defamation bill was proposed by the government, subjected to a public consultation process and reviewed by the Joint Committee on the Draft Defamation Bill.[51] This reform process resulted in recommendations for significant substantive and procedural reforms to the law, although there was little discussion of the social context and no attempt to reexamine the foundations of the tort. The Committee adopted four goals driving its review of the draft bill: adjust the balance between protection of reputation and freedom of expression; reduce the costs of defamation proceedings; improve accessibility to the law; and adapt to modern communications culture. But both the government and Joint Committee approached the issues as a basket of distinct, doctrinal reforms.

Many of the proposed reforms are reflected in the Defamation Act, 2013. Some of these, such as the introduction of a single publication rule and notice and takedown regulations for website operators, respond specifically to problems created by the emergence of the internet. The Act also tightens up the test for asserting jurisdiction over multi-state defamation claims in order to prevent England from being a libel tourism destination. Other reforms are more fundamental, including a provision reversing the traditional presumption of harm by introducing a serious harm requirement. And the defamation defences have been modified and codified.

The Defamation Act, 2013 takes a targeted approach to reform of defamation law. It addresses particular identified problem areas in the law and develops legislative fixes.[52] UK legislators did not step back to consider how the rise of the internet is affecting the foundations of defamation law. David Mangan has politely commented, “[a]s legislation passed in the midst of remarkable technological advances in communication, the Act underwhelms”.[53] One example is the Act’s emphasis on monetary remedies more suitable for traditional media defendants over discursive remedies more suitable to defamation on social media platforms.[54]

What did not find its way into the Defamation Act, 2013 were the recommendations by the Joint Committee for a procedural overhaul designed to promote early settlement and remove many defamation proceedings from the court system.

The impact of the Defamation Act, 2013 is not yet clear. Case law interpreting the new provisions is only now beginning to accumulate. But the Act provides the best example so far of how a jurisdiction may adapt its body of defamation law to the internet age.

Most of the Defamation Act, 2013 provisions apply only to England and Wales. Therefore, in 2014, the Northern Ireland Law Reform Commission undertook to determine whether Northern Ireland should adopt the Act in whole or in part. In its Consultation Paper, the Commission suggested that the tension in many modern defamation proceedings is not so much between reputation and free speech, as between litigants who can afford to defend themselves and those who are unable to do so.[55] The Commission was disbanded before it could issue its report and the Ministry of Finance retained Dr. Andrew Scott to make recommendations on the matter. His report recommended that the majority of the provisions in the Defamation Act, 2013 be adopted.[56] However, the report also went further and suggested procedural reforms to enhance access to justice.

The Scottish Law Reform Commission followed suit with a discussion paper released in 2016.[57] Again, the focus was relatively narrow, using the Defamation Act, 2013 as a model for possible reform. The Commission recognized that the Act would not fit easily in all respects with Scots law and suggested that codification of the entire Scot law on defamation would not be “practical”.[58] However, the Commission also noted the benefits of consistency in the law and committed to assessing the issues “with a view to avoiding being left behind by developments in England and Wales”.[59]

Most recently, in October, 2016, the government of Ireland announced its intention to review defamation law and has requested submissions from the public.[60] The aim of its review is to assess the changes made by the Defamation Act, 2013, review recent reforms from other jurisdictions and determine if Irish law (particularly the Defamation Act 2009) is appropriate and effective at fulfilling its objectives.[61]

2. Australia and Other Commonwealth Jurisdictions

Australian law is also largely based on the English common law. The main legislative development has been the adoption of uniform defamation legislation by all states and territories in 2006.[62]

It is worth noting the Australia Law Reform Commission’s (ALRC) 1979 Report, Unfair Publication: Defamation and Privacy.[63] Although this report did not result in legislative change, it is a good example of an earlier attempt to do broad-based law reform from first principles. The ALRC undertook to clarify Australia’s complex defamation law within the context of a changing society and changing media.[64] The report identified three main defects in the existing law: inefficiency in protecting reputation, creation of obstacles to the free flow of information on public affairs and inadequate protection of personal privacy.[65] In responding to these concerns, the Commission adopted a broader conceptual view of what it termed “the law of unfair publication”; encompassing defamation as well as publication privacy. It recommended the legislation of an Unfair Publication Act which would substantially codify defamation law and create a new right of action for publication of private facts.

In the end, the ALRC Report was overly ambitious. The federal Australian government did not have jurisdiction to follow through with its recommendations and there was insufficient cooperation among the states and territories to agree on uniform legislation.[66] Australia was eventually successful in adopting uniform defamation in 2006 but without reference to ALRC’s unfair publication framework.[67]

However, the Australian courts have been the source of some key decisions considering the extent to which traditional defamation law principles should be reinvented in the wake of the internet. For example, in Gutnick v. Dow Jones [2002], the Australian High Court considered the legal test to be applied in assuming jurisdiction over a multi-state internet defamation proceeding.[68] More recently, in Google Inc. v. Duffy [2017], the Supreme Court of South Australia upheld a finding that Google was liable for failing to remove defamatory material from its search results, including its Autocomplete and Related Searches features, after having been made aware of the material.[69]

Other common law jurisdictions that may be of interest in this project include New Zealand, South Africa, Hong Kong, Malaysia and Singapore.[70]

3. United States

The approach to defamation law in the United States is distinct from that in Ontario and other commonwealth jurisdictions. In the US, defamation law is heavily influenced by the strong protection of free speech contained in the First Amendment of the US constitution. It is generally difficult to win a defamation lawsuit in the US without some clear and egregious conduct on the part of the defendant. Suits by public figures are especially challenging. Moreover, internet service providers have legislative immunity from defamation claims in their role as intermediaries.[71]

In spite of these distinctions, American law potentially has important implications for Ontario and other common law jurisdictions. For example, some argue that the American defence-friendly approach may encourage libel tourists to bring defamation claims in jurisdictions considered to be more plaintiff-friendly, including Ontario.[72] Others dispute that libel tourism is happening in practice.

4. Quebec

Quebec does not have a law of defamation per se. Defamation is addressed like all torts as a fault under the Quebec Civil Code.[73] The plaintiff must establish that a fault has occurred, that harm has resulted and that there is a causal connection between the two. This is a more contextual approach than in common law. There is no strict liability, no presumption of harm and no presumption of falsity. The arcane and categorical features of common law defamation law have led some to argue that a civil law approach would be preferable in addressing internet defamation claims.[74]

5. European Union

In the European Union, defamation law has developed against the backdrop of two competing rights in the European Convention on Human Rights (ECHR): article 8 privacy rights (including a substantive right to honour and reputation) and article 10 on freedom of expression.[75] This recognition of reputation as a human right reflects a more general tendency in the European Union to balance reputation and free expression somewhat closer to the reputation end of the spectrum than other jurisdictions. One example of this is the “right to be forgotten” created by the Court of Justice to recognize a plaintiff’s right to have personal data removed from a search engine where the data is no longer relevant to the purpose for which it was collected.[76] On the other hand, the European Court of Human Rights has emphasized the importance of protecting the role of the media as “public watchdog” and the need to avoid a chilling effect on political debate and satirical expression.[77]

The European perspective provides a useful counterpoint to the US heavy emphasis on freedom of expression.[78]

C. Spectrum of Policy Approaches to Defamation Law

The range of approaches to defamation law in the jurisdictions identified above is summarized in the following chart. The chart identifies at least four general policy models of defamation law. The chart demonstrates how different jurisdictions currently balance protection of reputation and freedom of expression.

The LCO stresses that none of these approaches predetermines the LCO’s eventual findings or recommendations. As noted above, the LCO is committed to developing a made-in-Ontario response to defamation law issues.

D. Inherent Challenges in Defamation Law Reform

The tort of defamation has been persistently and widely criticized for most of its existence. [79] As early as 1812, Mansfield C.J. criticized the structure of the tort but felt that it was too late to make significant changes.[80]

Another critic, Van Vechten Veeder, wrote at the turn of the twentieth century that if defamation law were actually achieving its purpose to balance our personal rights and public interest in protection of reputation and freedom of expression, it would be “an admirable measure of the culture, liberality, and practical ability of each age”. However, in his view, the law was not principled but, rather, “a mass which has grown by aggregation, with very little intervention from legislation” producing “meaningless and grotesque anomalies”. He concluded that the law was “…as a whole, absurd in theory, and very often mischievous in its practical operation.”[81]

Defamation law has been described as the “Galapagos Islands Division of the law of torts” since it has developed on its own without cross-fertilization with other tort law principles.[82] From a law and economics perspective, defamation law has been termed “completely irrational”.[83]

The difficulties with defamation law are deeply rooted. Commentators have pointed to a combination of challenges, some of which are inherent in the tort. These include:

  • The subjective nature of speech – Defamation law seeks to regulate a highly subjective and nuanced element of social relationships. Identifying and categorizing the kind of speech that should or should not be determined to be defamatory is complex and contextual.
  • The subjective nature of reputation – The concept of reputation is also highly subjective and contextual. Reputational harm can be a form of moral damage and is often not translatable into measurable economic loss. Crafting a remedy that responds to and compensates reputational harm caused by the defamatory speech is of necessity a rough and ready exercise.

Both these subjective aspects of defamation law combine to undermine the predictive nature of the law and both will be discussed further below. For the present, the point is to emphasize that the tort being considered in this project has developed awkwardly from its earliest incarnations. Up until now, the law has evolved piecemeal in order to deal with difficulties as they arise. In this project, the LCO will seek to develop from first principles a coherent set of legal principles to govern defamation law into the 21st century.

Questions for Consideration

1. What lessons are to be learned from the law and law reform efforts of other jurisdictions on the issues in this project? How applicable are these lessons to the Ontario context?

 

Top of the page

________________________________________________________________________________________________________________

III. Defamation Law in Context

The LCO’s goal in this project is to recommend defamation law reforms that reflect contemporary values and legal principles in social context. Therefore, in this chapter, the LCO considers how the legal, technological, and social landscape of 21st century society differs from the conditions at the time defamation law was developed.

Defamation law is necessarily a product of the era and community in which it is applied. Defamation law may also reflect different social and moral norms within the same time and place where different micro-communities exist. These norms vary with factors including gender, race and ethnic background, age and geography.[84]

The fundamental concepts underlying defamation law, reputation and free expression, are also, to some extent, generated by the norms and legal values of a particular time and place. For example, as society’s understanding of reputation changes, so too must defamation law if it is to continue to fulfil its protective purpose.[85] In an influential 1986 article, Robert Post wrote that “defamation law presupposes an image of how people are tied together, or should be tied together, in a social setting. As this image varies, so will the nature of the reputation that the law of defamation seeks to protect.”[86] So too, the constitutional entrenchment of freedom of expression has necessitated a rebalancing of the values underlying defamation law. And, as new forms of technology and expression develop, the means by which the law protects freedom of expression must evolve accordingly. The dynamic nature of defamation law is an important challenge to any law reform exercise.

A. Evolving Legal Principles and Values

Defamation law attempts to balance at least three important legal principles and social values: free expression, reputation and privacy. These principles are neither absolute nor mutually exclusive. For example, reputational harm can also impede free speech. An individual whose reputation is under attack and speaks out may be less likely to be heard or believed. At the other end of the spectrum, censorship inhibits the free exchange of opinions that is necessary for the development of reputation.

The LCO believes it is important to understand each of these principles or values on its own terms before discussing how they should be balanced.[87]

1. Freedom of Expression

A key catalyst for defamation law reform has been the enshrinement of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms:

2. Everyone has the following fundamental freedoms:…

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication…[88]

Freedom of expression has been labelled as “the matrix, the indispensable condition, of nearly every other form of freedom”.[89] The right encompasses the ability to express oneself in the manner of one’s choosing, as well as the ability to access expressive content produced by others.[90]

The Supreme Court of Canada has identified three values underpinning the right to freedom of expression under section 2(b) of the Charter: individual self-fulfillment, the search for truth and promotion of democratic discourse.[91]

i. Individual Self-Fulfillment

Freedom of expression has traditionally been considered vital to individual self-development and self-fulfillment.[92] Within Western cultures, the dominant view of the self is the independent self – a set of “internal attributes—thoughts, preferences, motives, goals, attitudes, beliefs, and abilities—that uniquely define the individual and enable, guide and constrain behavior”.[93] Expression is the means through which those attributes are revealed and one’s individuality is affirmed.[94] Expression also has important implications for self-perception and identity development.[95]

ii. Facilitating the Search for the Truth

Freedom of expression can also be justified as an essential component of the “marketplace of ideas” – the notion that unfettered competition between ideas promotes the broader societal goal of understanding truth.[96] The search for truth is understood to be a process rather than an outcome and the value of freedom of expression is not dependent on the truth of the expression. Even wrong opinions result in “the clearer perception and livelier impression of truth, produced by its collision with error.”[97] The marketplace of ideas rationale has been widely adopted in modern legal systems, including the Supreme Court of Canada, and remains a central justification for protecting expressive activities from state interference.[98]

iii. Promoting Democratic Discourse

Freedom of expression is also viewed as valuable because it promotes the “free flow of ideas essential to political democracy and the functioning of political institutions”.[99] This rationale manifests itself in two ways. First, freedom of expression allows government policy and action to be vigorously discussed and debated, thereby enhancing accountability.[100] Second – and linked to the “marketplace of ideas” theory – freedom of expression fosters open competition between different political visions of the state, furthering the goal of having only the best “rise to the top”.

Two of these freedom of expression values, the search for truth and democratic discourse, have been front and center in the Supreme Court of Canada’s defamation jurisprudence. However, the value of individual self-fulfillment has been less emphasized in the defamation context because, “the plaintiff’s interest in reputation may be just as worthy of protection as the defendant’s interest in self-realization through unfettered expression.”[101]

iv. Constitutional Values and Constitutional Rights

The values underlying freedom of expression have inspired significant common law reforms to defamation law over the past decade. The Supreme Court has adopted an objective test for the defence of fair comment, developed an entirely new responsible communication defence, and restrictively applied the publication rule to hyperlinks.[102] These developments have come about in the context of private law defamation disputes where the Charter is not directly applicable.[103] However, it is important to emphasize that any recommendations for legislative reform to defamation law will directly engage the Charter and must be compliant with the right to freedom of expression guaranteed in ss. 2(b).

2. Reputation

Accepting that our societal understanding of reputation has evolved since the early days of defamation law, the question becomes: what has it evolved into? What is the concept of reputation that defamation law is intended to protect in 2017? And how should the law reflect these contemporary values?

As noted above, the legal test for establishing defamation is whether the impugned statement would tend to lower the plaintiff’s reputation in the eyes of reasonable community members. In other words, there is typically no objective determinant of reputational harm. Reputational harm only occurs if reasonable members of society would tend to believe it has. Nor is there an authoritative legal definition of reputation that emerges from case law or scholarly literature. What one does find is a general consensus that reputation is too nuanced a concept to admit of a neat definition that covers all cases. Moreover, views may differ about who “reasonable members of society” are and how one determines what they would believe, once one identifies them.

Many scholars have adopted the following three concepts of reputation developed by Robert Post that defamation law is designed to protect.[104]

i. Reputation as Property

Historically, reputation was primarily considered to be an intangible property interest, somewhat analogous to goodwill. As a property interest, reputation has value and the tort of defamation is intended to provide a pecuniary remedy for the loss of that value. This concept of reputation as property is still reflected in modern defamation law, most particularly in claims by businesses to protect loss of commercial reputation or by individuals to protect their employability or other economic relations.[105]

ii. Reputation as Honour

According to Post, the concept of reputation as honour was developed in pre-industrial England when society was stratified into a well-defined class system and defamation was perceived as a means of vindicating one’s honour. This notion of reputation has fallen out of favour in modern society.

iii. Reputation as Dignity

Post argues that the concept of reputation that resonates most clearly in modern day is reputation as dignity. Defamation law has a dual role here. It is intended to protect the individual’s full membership in society (or “his interest in being included within the forms of social respect”) as well as society’s interest in its rules of civility.[106] The point of defamation law is not so much vindication but, rather, “rehabilitation of individual dignity and maintenance of communal identity”.[107]

Post points out the sharp conceptual distinction between the two notions of reputation most influential to modern defamation law doctrine: reputation as property and reputation as dignity. He argues that this explains much of the persisting incoherence of the tort since each concept reflects “a very different image of social life” and “the intellectual consistency of defamation law is strained by the pull of divergent underlying assumptions about the nature of social reality.”[108]

More recent literature takes Post’s analysis further. David Rolph emphasizes the media’s role in the creation and destruction of reputation. He would add to Post’s three categories a fourth, that is, reputation as celebrity.[109] Lawrence McNamara examines reputation in relation to community, arguing that reputational harm occurs when one’s moral status is diminished in the eyes of the community.[110] David Ardia reflects on Post’s theory that reputation is a societal interest and argues that the tort of defamation, and particularly the assessment of reputational harm, requires reform in order to reflect this reality. In the internet age, harm created by online defamation that is societal in nature should be addressed with a remedy directed at the social component of reputational harm.[111]

David Howarth sees reputation as a personal interest bound up with notions of sociality:

The individual pain caused by a threat to sociality might be a private matter, but the functioning of human groups and networks is important to the welfare of all of their members, not just to those threatened with exclusion.[112]

A theme running through these theoretical studies of reputation is that, no matter how the values underpinning reputation are exactly delineated, protection of reputation is seen to have significant social value in addition to personal value. This theme has also been expressed in the case law. For example, in Times Newspapers v. Reynolds [2001], the House of Lords recognized the importance of reputation to the public good in forming the basis of important decisions in a democratic society such as hiring, firing, promoting, forming business partnerships and voting.[113]

The Supreme Court of Canada has linked reputation to “the innate worthiness and dignity of the individual” and indicated that its protection is just as important as the protection of freedom of expression.[114]

In the European Union, reputational interests are recognized as one element of the right to private life protected by article 8 of the European Convention of Human Rights.[115] The exact relationship between reputation and private life and the extent of the overlap is less clear and is a developing area of ECHR jurisprudence and commentary.[116]

These alternative conceptions of reputation may impact defamation law in several ways; most particularly in the legal test that is to be applied in assessing reputational harm and the choice of appropriate remedies for responding to reputational harm. They also underlie questions about who should have standing to seek a remedy for reputational harm. More broadly, our conception of reputation has a direct impact on how defamation law balances protection of reputation and freedom of expression. Each of these issues is addressed below.

3. Privacy

A third important legal principle affecting defamation law is privacy. Privacy is no longer merely the right to be left alone. It is a constitutionally-protected value considered to be integral to our democracy. According to the Supreme Court of Canada:

…[S]ociety has come to realize that privacy is at the heart of liberty in a modern state. . . . Grounded in a man’s physical and moral autonomy, privacy is essential for the well-being of the individual. . . . The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.[117]

The Court has recognized three types of privacy interests: personal, territorial and informational. All types of privacy engage core values of dignity and integrity of the person.[118] Informational privacy recognizes that “all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.”[119] For the purposes of this project, breach of privacy claims involving disclosure of private information are conceptually closest to defamation claims.

Privacy interests have taken on new dimensions in the internet age. In R. v. Spencer [2014], the Supreme Court considered the right to privacy in the context of anonymous internet communications.[120] The Court examined three ways of understanding informational privacy (privacy as secrecy, privacy as control and privacy as anonymity) but focused on privacy as anonymity. In anonymous communications, the communication itself is not private. But the communication takes place on the understanding that the identity of the speaker will not be revealed. Therefore, the privacy interest extends not only to this identifying information, but also to the link between the identifying information and the anonymous communication.

The recognition of anonymity as an element of privacy illustrates that there may be privacy interests in public spaces. In certain circumstances, there will be a reasonable expectation that one may engage in public activity and be “casually observed” but “justifiably…outraged by intensive scrutiny” or, in other words, that one may “merge into the ‘situational landscape’”.[121] This may be relevant to evaluating the balance of interests in anonymous communications alleged to be defamatory.

Privacy issues are increasingly engaged in defamation law, particularly given the recognition of privacy as a human right in the European Union.[122] However, privacy interests remain conceptually distinct from reputation. Whereas defamation protects one’s public face, claims for breach of privacy seek to protect one’s private face.[123]

In practice, privacy and reputation are often intimately connected. Both may involve a similar balancing exercise with freedom of expression.[124] Both may be pleaded in relation to the same facts.[125]

Privacy interests are relevant at different points in the legal analysis for establishing and defending against a defamation claim. For example, a reasonable expectation of privacy is relevant to the public interest test and the assessment of factors required in applying the responsible communication defence.[126]

The legal principles and values discussed in this section, free expression, reputation and privacy, must underlie any defamation law reform. In the next section, we consider the impact of technology on defamation law.

B. Evolving Technology and Social Context

1. Technology and Defamation Law – Past, Present, and Future

Defamation law doctrine has evolved over the centuries to adapt to new communications technologies as they have emerged; from the printing press in the 15th century to broadcasting and telecommunications at the turn of the 20th century. For example, a statutory amendment in 1888 England extended the protection of qualified privilege to newspapers reporting matters of public interest, published before their accuracy could be confirmed.[127] In the 1940s, the Porter Committee recommended widening the definition of newspaper to provide protection to a wider range of publications in response to “changes in social, economic and political conditions” over the past 60 years”.[128] When broadcasting technology was invented, statutory amendments established that broadcasts would be dealt with as libel rather than slander.[129] Similar adjustments were recommended with the advent of cable TV.[130]

How does the invention of the internet in the 1980s relate to this long line of technological advancements and how should defamation law respond? Some see the internet as just one more step in this long history of the evolution of human communications.[131] Implicit in this view is a conservative approach to law reform. If the internet is a communications technology that differs from earlier technologies only in degree rather than in kind, then perhaps law reform should be similarly constrained. Others argue that the internet has taken human communications to another realm entirely. Its constellation of technological features has resulted in a new form of speech with vast social consequences. The logical corollary is that reform of defamation law should proceed from first principles and be open to novel legal solutions.

The possibility is that the internet has changed the nature of speech and/or the nature of reputation so dramatically that the traditional framework for understanding defamation law, as well as the court-based mechanism for remedying defamation, are no longer adequate for their purposes. According to Matthew Collins, “[a]lmost every concept and rule in the field of defamation law … has to be reconsidered in the light of the Internet.”[132]

2. Sources of Internet Speech

Of course, the internet is not a unified concept. It is a set of protocols by which computers may communicate with each other. These capacities let users develop a vast variety of platforms, techniques and interactions, and new protocols are devised from time to time that expand these capacities. The internet includes not only the World Wide Web and email but also bulletin boards, social networking sites and peer-to-peer networks for file sharing (such as Google Groups). Certain platforms will have overlapping functions. For example, Reddit is both a social networking and news website.

Platforms for online expression can be roughly divided into four categories:

· Email and analogous communication such as instant messaging

· Websites, bulletin board posts, blogs and social networking sites

· Hyperlinking: both “linking” and “framing”[133]

· Indexing web content in a particular form such as search engine results. [134]

Defamation claims may involve online expression from any of these platforms.

Social networking sites operate using an array of different forms of communication with different implications for defamation law. Reputational harm caused by a defamatory message on Facebook may look quite different from reputational harm caused by the same message on Twitter or Snapchat. In principle, Facebook operates on a real names basis so a plaintiff will typically be able to identify the alleged defamer and will be able to pursue a civil action if he or she chooses to do so. In contrast, Twitter and Snapchat posts are often anonymous, significantly complicating a potential civil action. The potential scope of reputational harm will also differ. Defamatory posts on Facebook will be published more or less widely depending on whether they are public or restricted to the account holder’s “friends”, and depending on the number of friends, the number of the friends’ friends and so on.[135] In contrast, Twitter posts are published to the general public. There are no privacy settings to contain who may read the post (though it is possible to send targeted messages by Twitter as well). Snapchat is different again with photos fading from the screen after a few seconds. This may limit potential reputational harm (although the reality is these images do not necessarily disappear).[136]

Thus far, Canadian case law on online defamation has tended to speak of the internet as a uniform phenomenon with unprecedented power to harm reputation. The argument has been made that, until relatively recently, courts have been unduly protective of reputational interests at the expense of freedom of expression simply as a result of their unfamiliarity with the technology and their unease with its potential power.[137] However, these are early days yet in the internet era and courts are already developing a more sophisticated understanding of internet technology.

3. Attributes of Internet Speech

There are several features of internet speech that are unique in combination and have a significant impact on how defamation law principles are applied.[138] Internet speech is:

· Geographically indeterminate

· Easily and instantly republished

· Transmitted by intermediaries

· Connected by hyperlink

· Transmitted in different forms

· Accessible indefinitely.[139]

We discuss some of these briefly.

i. Geographic Scope

The internet affords consumers “the ability to communicate instantaneously with a potentially vast global audience”.[140] Unlike their real-world counterparts, online speakers are far less constrained in their ability to reach their audience. Physical proximity is not a pre-requisite for online expression and dialogue. Access to information does not depend on access to physical repositories (such as public libraries). The geographic scope of the internet creates the potential for far more speech to reach a far larger audience than was traditionally possible and do so across jurisdictional boundaries.

ii. Speed and Reach

Internet speech may be communicated instantaneously to a large audience. It may be easily forwarded and hyperlinked, extending its reach beyond its immediate context. Some internet speech is prone to “go viral”, spreading quickly and widely throughout the internet. Other modes of communication, such as cell phones and live television, allow for instantaneous communication but on a smaller scale and without the potential for two-way communication.

iii. Intermediaries

Internet communications are necessarily intermediated communications. Internet intermediaries are gatekeepers that control the flow of information as it travels from the original communicator to the end receiver.[141] These intermediaries include, but are not limited to the following:

Internet service providers (ISPs), such as Rogers Communications and Bell Internet, provide the physical infrastructure through which internet communications must pass en route from one computer to another.[142] ISPs will also often “cache”[143] certain types of Internet content to allow them to be more easily transmitted to subscribers.[144] These intermediaries are to be distinguished from the core cables, satellites and nodes that underlie the transmission of signals around the world. They are also distinct from the registrars and domain administrators that make the addressing system work.
Search engines, such as Google and Yahoo, index online content in response to search queries and present them in a set of ranked hyperlinks. Some have compared the Internet to a library.[145] If this analogy is apt, search engine results are the card catalogue that allows users to locate specific content.
Content hosts who operate message boards, blogs and so on, that allow members to express views and exchange ideas.
Intermediaries are not a unique feature of internet architecture. In the physical world, individuals may express and receive ideas through traditional intermediaries such as television operators and newspapers. However, internet intermediaries typically exercise a weaker form of editorial discretion, if any, over the content they display.[146] This is both a function of capacity (given the sheer volume of content on the Internet) and choice.

iv. Anonymity

It is far easier for speakers to remain anonymous online than in the physical world.[147] Anonymous comments are frequently posted on blogs, message boards and other websites. Some websites operate on a presumption of anonymity. Anonymous comments posted from a public computer (such as in an Internet cafe or library) may be almost impossible to trace back to their author.[148] Web hosting services exist which allow internet users to establish and maintain websites without disclosing any identifying information.[149]

Anonymous publication is more difficult to achieve in the physical world. In-person communication often requires disclosure of some identifying information that is unnecessary online simply by virtue of the Internet’s architecture.[150]

v. Permanence

Once posted, online expression typically stays permanently on the internet and remains readily accessible to others. Permanence of information is not unique to the internet – libraries, for example, will sometimes store extensive archives of books, newspapers and magazines. However, access to these archives is typically limited.[151] The internet’s unique combination of permanence and accessibility gives internet speech a lasting character that it does not possesses through other mediums of communication.

Further on in this Consultation Paper, we ask questions about how the law should govern specific aspects of internet communications.

C. The Networked Society

The technological change represented by the internet has also impacted how we understand and participate in community. Manuel Castells argues that we have evolved into a networked society characterized by individuation. Whereas our community was once defined by our physical location, community may now be individually generated online, on the basis of common interests, values and projects.[152]

This has important implications for defamation law reform. In spite of the ubiquity of the internet, the tort of defamation remains grounded in the social norms of specific communities. The internet has blurred the boundaries between communities, making it difficult for a court to identify a consistent set of social rules for the purpose of assessing whether or not they have been violated by an alleged defamatory statement. In this sense, modern defamation law has become uncomfortably bifurcated, attempting to accommodate this new global technology while remaining faithful to local norms and values.

The networked society has not only affected our understanding and experience of community, it has also affected the way we communicate. According to Castells, the communications process has shifted from being “a message sent from one to many with little interactivity” to “messages from many to many, multimodal, in chosen time, and with interactivity, so that senders are receivers and receivers are senders.”[153] As discussed below, there is an argument that this potential interactivity between speaker and receiver creates a degree of internal accountability that may lessen the need for legal regulation.

It may be that the networked society also affects our individual experience of communicating. For example, some point to a positive correlation between use of the internet and psychological indicators of personal happiness.[154] Others point out a tendency for some internet users to develop more insular views due to their limited intake of information based on their personal interests.[155]

Where new forms of harmful speech have occurred online, there has been some pressure on defamation law to provide a remedy.[156] However, the broader point is that these changes in the way we communicate may have implications for the kind of content published on the internet and the scope and efficacy of defamation law in regulating it.

Finally, the networked society is a global society. As Kirby J. in the High Court of Australia has observed, “interrelationships created by the internet exist outside conventional geographic boundaries and comprise a single interconnected body of data”.[157] One consequence of this phenomenon is that there are increasingly common legal issues among different jurisdictions. Another consequence is that conflict of laws issues are increasingly occupying the courts. For example, the recent defamation law reform in the UK was partly motivated by a concern that the UK was becoming a libel tourism destination.[158] British Columbia practitioners have expressed the same concern.[159] The issue here is how we might achieve a degree of harmonization in the law among these different jurisdictions.

1. Media in the Internet Age

Defamation law has traditionally provided media (and other public interest speakers) with certain protections to ensure that it is able to fulfill its function of reporting in the public interest. However, the internet challenges the traditional distinction between media and other defendants by making it possible for anyone to engage in public interest reporting and commentary.[160] The internet facilitates rapid dissemination of articles, pictures and videos covering social and political developments of every kind, from celebrity scandals to police abuse. Most of this content comes from regular citizens, not professional journalists.[161] As of October 2011, there were 173 million blogs on the internet.[162] Not all of these are likely to chronicle matters of public interest, but those that do are increasingly blurring the boundaries of professional journalism.

In Hilary Young’s empirical examination of Canadian defamation actions, she found that the percentage of defamation actions involving traditional media publications (as compared to non-journalistic publications) was significantly lower in the first decade of this century than in the 1970s.[163] Today, the defendant in a defamation action is just as likely to be an individual blogger, tweeter or troll, as an established media outlet.

And yet there are a number of potentially relevant distinctions between traditional media and public interest bloggers. First and foremost, traditional media are subject to accountability mechanisms, such as codes of ethics and press councils, lacking in citizen journalism.[164] These promote an expectation that traditional news stories will be accurate. Online journalism is valued, in part, for other attributes. One blogger described the distinction as follows:

The culture of traditional journalism, with its values of accuracy, pre-publication verification, balance, impartiality, and gate-keeping, rubs up against the culture of online journalism which emphasizes immediacy, transparency, partiality, non-professional journalists and post-publication correction.[165]

One issue for defamation law reform is whether it is appropriate to extend the procedural advantages afforded newspapers and broadcasters in the LSA to online bloggers/citizen journalists given this new culture of digital media ethics.

2. Difficulty of Predicting Technology

Although the unique attributes of internet speech must be taken into account in designing effective defamation law reform, the LCO is also conscious that technology is evolving too quickly to predict what online communications will look like in the future. Robert Danay argues against the longtime tendency to develop defamation law principles in relation to the medium through which defamatory communications pass.[166] He wonders how a tort that was already out of date over a century ago can possibly assimilate the rapid fire technological developments over the past 40 years and into the future. This is a fair point and the LCO seeks to develop recommendations that are technology neutral; recognizing that, although transmitted through technological means, online communications are still at their core about people: their relationships, rights and reputations.

Questions for Consideration

2. Can or should defamation law reform in Ontario differentiate between the following and, if so, how:

  • Traditional communications and internet communications,
  • Reputational harm on the internet and reputational harm offline,
  • Different forms of internet communications,
  • Traditional media publishers, bloggers/citizen journalists and other internet publishers

3. Are there new or emerging technologies or issues that the LCO should consider when analyzing the impact of the internet on defamation? What considerations should the LCO take into account to ensure that our recommendations are likely to remain relevant as technology changes?

D. Defamation in the Age of the Internet

In this section the LCO returns to the principles and values underlying defamation law and considers how the evolving technology and social conditions have affected them and, therefore, affected defamation law reform.

1. Freedom of Expression in the Internet Age

Technological innovation in communications necessarily influences freedom of expression, and this has never been more apparent than in the emergence of the internet era. Jack Balkin has written:

…[T]he most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislation and administrative regulations, the formation of new business models, and the collective activities of end-users.[167]

In this section, we consider how the attributes of online expression affect how we now understand the value of freedom of expression.

i. Online Expression is Relatively Accessible

Online expression is generally less constrained by financial or physical barriers than traditional expression is. Expression can be expensive in the physical world. Low-cost methods of expression exist, but these typically have limited dissemination.[168] Further, the publication standards adopted by traditional media outlets restrict broad expressive opportunities for less advantaged members of society.[169] These individuals also face greater difficulties in accessing information from physical locations such as libraries.[170] Relative to traditional forms of expression, the Internet provides a low-cost method for large segments of society to express their views, engage in dialogue and access information.[171]

This has important implications for the kinds of claims that engage defamation law principles today. Traditionally, defamation law was invoked most often by plaintiffs in response to media speech or speech by others with the resources to publish by traditional means. These cases were more likely to be “worth” the cost of a legal action. Now, in addition to traditional claims involving, for example, a public figure alleging that a news article oversteps the bounds of responsible journalism, we see more claims arising from personal disputes played out over social media. With online expression now available to a much broader range of individuals in relation to a broader range of speech, defamation law must be flexible enough to adapt to these differing circumstances.

ii. Online Expression May Be Subject to Different Social Norms

In certain situations, social norms constraining online expression may be different from those governing physical expression. Influenced in part by the ease of anonymity on the internet, online speech can be more pointed, confrontational and hyperbolic than its physical counterpart.[172] Shared norms regarding acceptable expression may develop in online forums and speakers who violate these norms may face a variety of sanctions such as criticism, message blocking and account deletion.[173] However, online norms differ from location to location and can also rapidly change over time. This makes it more difficult to identify the social norms relevant to assessing reputational harm and, in turn, to apply the current legal test for defamatory meaning. Defamation law reform must allow for these changing norms and expectations.

iii. Online Expression Promotes the Search for Truth and Democratic Discourse

The Internet makes possible a “marketplace of ideas” of unprecedented size and variety which arguably enhances the search for the truth by fostering competition between a broad and diverse set of ideas and opinions.[174] Anonymity has the potential to strengthen these trends by encouraging individuals to express unpopular viewpoints. Online databases like Wikipedia, search engines like Google and hyperlinks all allow individuals to tap into a vast swath of information in an organised manner.[175] These services and activities allow individuals to better understand existing knowledge, a crucial component of the “search for the truth”. By facilitating access to information about government activities and laws, the Internet strengthens accountability and provides a basis for informed electoral decision-making, thereby enhancing democratic discourse.[176]

On the other hand, the nature of online communications may also hamper the “search for truth” in a variety of ways. The speed of online communications discourages fact-checking in some circumstances.[177] Also, our understanding of truth and falsity is, perhaps, more complicated online. We find value in databases like peer-edited Wikipedia without any reliance of their truth. It is important in reforming defamation law, which is defined by the distinction between true and false, to consider our evolving relationship with these concepts. It is also important to recognize that there are both benefits and costs of protecting anonymous speech.

The role of online expression in promoting the values underlying freedom of expression depends on access to intermediaries such as ISPs, content hosts and search engines and, as a result, the issue of intermediary liability is a crucial one for defamation law reform. For example, risk-adverse intermediaries may be motivated to remove internet content without waiting for a ruling on its legality, thereby preemptively chilling free speech.[178] Therefore, the values inherent in freedom of expression are engaged in every aspect of the reform process.

iv. How Should the Law Respond to Online Expression (or Can It)?

Courts are already struggling to reinterpret free speech in the context of the internet era and, in fact, free speech has been the cri de coeur of many internet advocates. Some have even suggested that it is no longer possible to effectively regulate freedom of speech in the internet age.[179] For those who believe otherwise, that some regulation of online expression is possible and, indeed, essential, disagreement persists about whether distinct legal rules are warranted.[180] One school of thought holds that online expression constitutes a “brave new world of free speech”, and as such, often requires different legal analysis than does traditional expression.[181] For instance, the Ontario Court of Appeal has held that the factors to consider in determining damages for online defamation must be examined in light of the “ubiquity, universality and utility” of the Internet.[182] Similarly, the Supreme Court of Canada has warned against a “formalistic application of the traditional publication rule” to hyperlinking on the Internet, in light of the importance of the activity to the free flow of online information.[183]

A second school of thought argues that online expression should not receive special legal treatment. U.S. appeals court Judge Frank Easterbrook once stated that “there was no more a “law of cyberspace” than there was a “Law of the Horse” in the days of horse-based transportation and agriculture.[184] While his view has not found favour in modern legal scholarship, some academics have attempted to re-focus online expression jurisprudence away from the medium of conveyance and towards the content of the expression in question.[185] On this view, broad generalizations about the Internet adversely impact the delicate balancing required in most legal claims involving online expression.[186] This issue as to the approach to be taken in reforming defamation law in the internet age is one of the questions underlying our consultations process.

Questions for Consideration

4. How is our understanding of freedom of expression interests, issues or expectations different in the internet era? What, if any, significance does this have for defamation law reform in Ontario?

5. Has our understanding of truth and falsity changed in the internet era and how should this affect defamation law reform in Ontario?

2. Reputation in the Internet Age

The internet has caused a shift in how society understands reputation.[187] One of the key reasons that social media sites exist and are so popular is their capacity to influence reputation; either by enhancing reputation (such are where Facebook users post information carefully designed to allow others to see them in a positive light) or harming it (such as in the case of whistle-blowers). In this sense, reputation is a core currency in which social media sites deal. Reputation is even more explicitly at stake in online review sites, such as TripAdvisor and HomeStars. The exchange of reputational information is the very purpose of these websites.

The democratizing effect of the internet also means that reputation no longer necessarily follows the social hierarchies of offline society. And internet communications may have the effect of destabilizing reputation. As it becomes possible for a much wider group to publish information about an individual, correspondingly less control may be exerted by the individual in question.

Similarly, internet communications may have the effect of decontextualizing reputation. An individual’s reputation is understood within the context of the social and cultural norms of her community as well as the context of the publisher. Information about an individual that is published online and then republished may be distorted where it is stripped of this contextual information.[188] Also, many people have more than one identity on the internet and, therefore, more than one reputation.

The commercial value of reputation is also of increased concern in the internet age. A 2012 World Economics survey found that, on average, more than 25% of a company’s market value is directly attributable to its reputation.[189] Corporations view reputational risk as a strategic business issue; many of them consider it the most important strategic risk that they face:

“…[A] company’s reputation should be managed like a priceless asset and protected as if it’s a matter of life and death, because from a business and career perspective, that’s exactly what it is.”[190]

And it is not just corporations whose reputation has a commercial or economic value. Anyone starting a career or even looking for a job must be concerned for building their “brand”.

Once reputational harm has occurred on the internet, there are several options for controlling or minimizing that harm short of bringing a legal action. The first step is often asking the website owner to remove the defamatory content according to its posting guidelines. This is the preferred option for many youth.[191] Individuals may also proactively manage their online reputation on social media sites by controlling their privacy settings or using a fake identity, for example.[192] An online reputation management industry has developed to offer expert service in proactively managing one’s online reputation as well as in managing reputational harm once it occurs.

Many businesses also proactively manage their online reputation by monitoring social media (known as “social listening”) and by using technology such as analytical and brand monitoring tools.[193] Businesses also increasingly rely on online reputation management services as a means of combating defamatory or other harmful statements online. The strategy is often to create positive and linkable counter-stories so that harmful links are buried far down the list of search results and, thus, are unlikely to be viewed by users.

The prediction is that, as more of the population becomes internet-savvy and the next generation of internet users grows up, we, as a society, will become more sophisticated in understanding the reputational risks posed by social media and will develop more effective ways of managing our reputations on an ongoing basis.[194] To the extent that this prediction is realized, legal tools like defamation will be relatively less in demand.

3. Privacy in the Internet Age

Social norms about privacy have fundamentally shifted with the rise of social media sites such as Facebook and Twitter as well as ever-present smartphone cameras.[195] The online publication of behaviour once considered to be private also has a consequential impact on reputation. The problem is described by Daniel Solove in his book The Future of Reputation:

We’re heading toward a world where an extensive trail of information fragments about us will be forever preserved on the Internet, displayed instantly in a Google search. We will be forced to live with a detailed record beginning with childhood that will stay with us for life wherever we go, searchable and accessible from anywhere in the world. This data can often be of dubious reliability; it can be false and defamatory; or it can be true but deeply humiliating and discrediting… This record will affect our ability to define our identities, to obtain jobs, to participate in public life, and more.[196]

Furthermore, the distinction between the concepts of privacy and reputation has become blurred in the online world. Reputational harm may equally occur as a result of the publication of true statements (violating privacy interests) and the publication of false (defamatory) statements. For the individual harmed, as well as the end user reading the statements online, the truth or falsity of the statements may be somewhat beside the point. The statement may take on a life of its own:

On the internet, we constantly live in a twilight between fact and fiction. We’re often exposed to information that we can’t entirely trust. In a world where it is difficult to separate the true from the false, rumor and defamation can readily spread, and the Internet can be used as a powerful tool to launch malicious attacks on people and ideas.[197]

There are several legal categories that have developed to address forms of online harm involving a blend of reputation and privacy interests. Cyberbullying, hate speech, breach of privacy, online harassment and the right to be forgotten among others, may engage similar interests to those protected by defamation law. Plaintiffs who have suffered reputational harm as a result of online speech are unlikely to understand or care about the particular legal label lawyers use in describing their case. The role of privacy in defamation law must be understood in this broader context.

Questions for Consideration

6. Are reputational or privacy interests, issues or expectations different in the internet age? If so, what significance does this have for defamation law reform in Ontario?

 

Top of the page

________________________________________________________________________________________________________________

IV. The Legal Test for Defamation

The test for establishing defamation is long-settled. The plaintiff must prove that the impugned statement:

(1) has defamatory meaning,

(2) refers to the plaintiff and

(3) was published to a third party.

It is also required that the statement be false but this is presumed at first instance. The defendant may make out the defence of justification by establishing the statement’s truth. It is also presumed that the statement caused the plaintiff to suffer reputational harm unless the defendant shows otherwise.

The defendant has an array of possible defences. Where the statement was made in the public interest, the defences of qualified privilege, fair comment or responsible communication may apply.

These elements of the legal test for defamation were, for the most part, established long ago. They are subject to an extensive body of case law interpreting and applying them to countless cases over a period of centuries. The Law Commission of Ontario (LCO) does not propose to delve into the nuances of specific elements of the tort. Rather, for the purpose of this project, we have two main concerns: the overall balance struck by these elements between protection of reputation and freedom of expression, and how successfully these elements operate in the context of internet communications

The legal elements of defamation all contribute to a balance between plaintiffs’ interests in protection of reputation and defendants’ interests in freedom of expression. Like a game of pick–up-sticks, it is difficult to isolate one element of the test for the purpose of legal reform without throwing off that balance. For example, the strict liability nature of defamation and the presumptions of harm and falsity lower the threshold for establishing the tort. They allow plaintiffs to make out their case without the need to prove that the defendant acted negligently or that harm actually occurred as a result of the defamatory words or that the defamatory words were false. Conversely, defences such as qualified privilege and fair comment were developed to counterbalance this low threshold. They protect defendants in circumstances where the societal interest in free expression outweighs protection of reputation and liability is deemed inappropriate.

The constitutional entrenchment of the right to free expression in ss. 2(b) of the Charter has led the Supreme Court of Canada to reassess the balance struck by these elements of the tort.[198] In the last decade, the Court has strengthened the defence of fair comment and created a new defence of responsible communication for the express purpose of shifting the balance to provide additional protection to freedom of expression.

In this project, the LCO is examining the balance between reputation and free expression once again. In considering whether any particular element of the tort of defamation should be reformed, the impact of any such reform on the balance struck by the elements of the tort as a whole must be considered.

The LCO’s other focus in this chapter is on the operation of the elements of the tort as applied to the new forms of defamatory communications made possible by the internet. Defamation law was already viewed as irrational long before the introduction of the Charter and the advent of the internet.[199] Over the past forty years, the social and technological changes that have taken place have further destabilized this already unstable body of law. This might be thought to be ideal conditions for reforming the legal test for defamation. On the other hand, the substantive elements of the legal test are long-settled. It may not be practical or advisable to change them or for Ontario’s defamation law to deviate substantially from the law in other common law provinces and countries. In this chapter, the LCO reviews the various elements that make up the legal test for defamation and considers how the development of the Charter and the internet should affect any potential reforms to the law.

A. Defamatory Meaning

There has been debate about the definition of defamation and the determination of defamatory meaning almost as long as the tort has been in existence. In this section we consider if the legal test for defamatory meaning should be reformed in light of the distinctions between traditional communications and internet communications. The internet has been called “… a rough and tumble medium, where language is rude, strong, confrontational and hyperbolic.”[200] If our social expectations about the nature of online speech have changed, the issue is whether the legal determination of what amounts to defamation should change accordingly. Thus far, this position is not reflected in Ontario case law.[201] The LCO also considers whether this may be an area for legislative reform or whether the common law should continue to evolve incrementally. In an area of law that turns so closely on the nuances of language and the context in which that language is received, incremental reform through case law may be best suited to addressing these issues.[202]

1. A Contextual Test

Traditionally, a statement is defamatory where it “…tends to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule.”[203] This test for defamatory meaning is expressed in the language of an era long past.[204] More recently, in Grant v. Torstar [2009], McLachlin C.J., rephrased the test by replacing the phrase “right-thinking” with “reasonable”. [205] This test is more appropriate in a modern pluralistic society, but still involves some degree of social prejudice in assessing what segment of the community is to be considered reasonable.[206]

Applying the test for defamatory meaning is complicated. Courts are to discern defamatory meaning from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented”.[207] Contextual factors that the court may take into account include the audience’s pre-publication knowledge and opinion of the plaintiff and of the defendant, the subject matter to which the words relate, relevant circumstances of the audience, the form of publication and whether the words are opinion or fact.[208]

In practice, contextual factors tend to be underused in the case law. Courts often infer defamatory meaning in the case of a disparaging statement.[209] Hilary Young argues that courts should be looking beyond the bare disparaging meaning of the statement and considering factors indicating the actual presence or absence of reputational harm. This would allow courts to adjust the balance between protection of reputation and freedom of expression on a case by case basis without requiring any change to the law.[210]

2. The Online Context

Some commentators have suggested that the fact that a disparaging statement was published online may be the most important contextual factor of all.[211] This view is premised on a belief that internet communications are qualitatively or inherently different than print communications. The question for stakeholders in this project, therefore, is whether online communications appropriately fit within the traditional doctrinal framework or whether a new framework is necessary. There is no doubt that internet communications are often experienced differently than print communications, but are these differences compatible with the existing common law rules or do they warrant reform?

This question was raised by the Ontario Court of Appeal in Baglow v. Smith [2012] when it ordered that a defamation claim arising from an incendiary political blog proceed to trial.[212] The resulting trial decision, Baglow v. Smith [2015], is the leading Ontario case on defamatory meaning in the context of internet communications.[213] The case involved a dispute between two well-known political bloggers. The defendant posted a blog stating that the plaintiff was “one of the Taliban’s most vocal supporters”. The question for the court was whether, in the context of the case, the post would tend to cause reasonable people to think less of the plaintiff.

The trial judge appointed an expert on social media, culture and communications, Dr. Greg Elmer, to assist the court. In his testimony, Dr. Elmer highlighted significant differences in how political communications are understood online and offline:

  • Blogs are archived. Unlike traditional media in which new articles are self-standing, new blog posts build on earlier posts. This accumulation provides context for readers.
  • Bloggers have different expectations of social media and blog platforms than of mainstream media. Blogging is possible 24/7 and posts and comments appear in near-real time. The relative speed of these communications promotes personal and “life-like” interactions.
  • Mainstream media are regulated by professional practices, ethics and guidelines which provide a degree of accountability to which bloggers are not subject.
  • Many blogs are moderated but moderators tend to limit their interventions.
  • Bloggers often hyperlink to documents, pictures and comments that provide context for their posts. This enables bloggers to focus their posts more on opinion, argument or sarcasm.
  • Bloggers are well aware of and expect the confrontational nature of online political communications. They expect humour, sarcasm, irony and sharper language. This expectation is less entrenched among mainstream media commentators. (More personal attacks, known as “flame wars”, are not necessarily expected in the blogosphere.)
  • Bloggers are able to measure their popularity and influence in the comments posted in response to their blogs.
  • Readers interpret blogs based on factors such as the structure of the blogs and boards, their ownership, moderation, mission and history, reputation of the bloggers in question and the broader partisan environment (elections etc.).
  • The anonymity of a blogger may be relevant to readers in assessing his or her credibility; however, pseudonymous bloggers develop credibility online over time just as named bloggers do.
  • Blogs tend to be short to reduce the amount of “scrolling down” that readers must do and because of the fast pace of exchanges between the blogger and readers.
  • Readers expect that bloggers will respond when their opinion is challenged in a comment.

Notwithstanding this evidence, in the end the trial judge held that the words on the blog were defamatory. She expressed concern for the consequences if internet speech were to be exempted from defamation law:

[I]t seems to me that taking the submissions of the CCLA and the defendants to their logical conclusion, little, if anything, could be found to be defamatory on partisan weblogs and message boards.[214]

It is arguable that the decision in Baglow v. Smith gave insufficient consideration to the unique nature of internet communications and, in particular, the “rough and tumble” nature of the blogosphere. Although this case was decided after Young’s call for a more contextual application of the defamatory meaning test, it might be speculated that this was exactly the kind of case she had in mind. As she notes, “[t]he right-thinking person is…known to possess common sense, to be informed and not to be naïve.”[215]

On the other hand, the decision in Baglow v. Smith is consistent with the Supreme Court’s decision in WIC Radio v. Simpson [2008] where a statement by a radio host comparing an anti-gay activist to Hitler was held to be defamatory.[216] It is easy to understand why the trial judge felt obliged to follow the result in WIC Radio. Although there may be obvious differences between political blogs and mainstream media, the differences between political blogs and shock radio shows are not as easily apparent.[217]

In an article responding to the Baglow v. Smith decision, Spencer Keys suggests that the internet is more than a new medium for the publication of familiar messages to familiar audiences.[218] He argues that the internet allows for a more democratic form of dialogue in which each blog, video, message board response and social media post is subject to the perspectives of and modification by others. This provides a form of internal accountability for internet communications that is not available in traditional communications. According to Keys, the judge’s concern in Baglow v. Smith for the experience of blog readers does not take into account the “moral community” of the blog where readers may respond with their own posts, or may search the internet for additional material to put the blog in context. Nor does it account for the fact that these readers only come into contact with the blog because they actively choose to participate in the discussion board.[219]

There are also other distinctions between traditional media communications and internet communications that may be relevant in assessing defamatory meaning. For example, the context surrounding an online statement may not be apparent to the reader where the statement has been transmitted far from the community in which it was originally uploaded. Internet communications are easier to misunderstand because they may be forwarded or retweeted out of context. A comment intended as a friendly joke may be misunderstood to be an attack. Abbreviations such as “LOL” and emoticons were created for just this purpose.

To date, Canadian courts have not accepted the argument that blogs are inherently different than traditional communications for defamation law purposes. If Dr. Elmer’s list of differences were to be accepted as being materially significant for determining defamatory meaning, the existing contextual test may need to be adapted to defamatory comments in the blogosphere. This gives rise to at least two issues. One issue is how effective are accountability mechanisms inherent in internet communications in preventing irresponsible and harmful communication. Assuming that some form of legal regulation over defamatory blogs remains desirable, another issue is what considerations should be taken into account in developing a new test that respects the unique characteristics of the blogosphere but continues to provide an appropriate deterrent to online reputational harm? What seems clear is that internet communications are increasingly the new terrain of defamation battles and that the Canadian courts – and potentially legislatures – are very likely to be confronted with these issues more frequently in the future.

Questions for Consideration

7. Would legislative reform of the test for defamatory meaning be appropriate or should this area of defamation law continue to evolve incrementally through case law? If a new test were adopted, what elements should be part of this test?

B. The Common Law of Publication

A pivotal element in establishing defamation is that the defamatory content has been published to a third party. Although there is an extensive body of case law on publication dating from the 16th century, the legal principles remain confused. One reason for this has been the need for the law to keep pace with evolving technologies involved in the publication process, from the printing press to the internet. The degree of human involvement in the transmission of defamatory material has ebbed and flowed over this time and the concept of involvement has become key to establishing someone as a publisher.

In this project, we are focusing on how the traditional law of publication has adapted to the internet era. So far, the courts have sought to apply existing principles to online defamation cases by relating internet publications back to traditional forms of publication. One question in this project is whether this approach is sufficient or appropriate. Are online publications a new variant of offline publications to which the traditional test should be adapted? Or are online publications distinct enough that the traditional test should be reevaluated?

The law distinguishes between primary and secondary publishers. Primary publishers “have or can readily acquire full knowledge of the publication’s content before its release and are able to control and, if necessary, prevent dissemination of such content”.[220] Secondary publishers, in contrast, have a relative lack of knowledge or control over the content. In this chapter, we review the traditional law of publication as it relates to both primary and secondary publishers, and then examine the application of these principles to internet publications by primary publishers. In chapter VII below, we will look at secondary liability for online publications as part of a broader discussion of internet intermediaries and content regulation on the internet.

1. Existing Categories of Publication

Primary Publication and Publication by Omission

In Canadian law, defamatory words are published where they are conveyed (brought to someone’s attention) to at least one third party and are heard and understood by the third party.[221] The onus is on the plaintiff to prove that publication has taken place but, traditionally, this has been a relatively low threshold. [222] Although the plaintiff need not prove (at first instance) that the defendant intended to cause her harm, she must establish that the defendant intended to or negligently published the words in issue (although not necessarily knowing that they were defamatory).[223]

Liability in defamation may also extend to those who are found to have published defamatory words by omission.[224] For example, a property owner may be liable for failing to remove a defamatory poster from its property where it not only has knowledge of the defamatory statement but, by its inaction, can be said to have adopted or endorsed it so as to become a publisher.[225]

Secondary Publishers and the Defence of Innocent Dissemination

The law becomes more confusing when applied to secondary publishers who play a “peripheral role” in conveying defamatory words authored by someone else.[226] There is a myriad of cases where secondary publishers such as book stores, printing press operators, distributors and others have been held to be publishers of material passing through their hands even where they did not know of its content.[227] According to the Supreme Court in Crookes v. Newton [2011], “the breadth of activity captured by the traditional publication rule is vast”.[228] In fact, the very concept of a secondary publisher is legally problematic. Imposing liability on secondary publishers can be said to undermine the protection of freedom of expression since these publishers will often have “little stake in the content of what has been published” and, therefore, little incentive to protect it in the face of litigation.[229]

There have long been efforts to rationalize the law as applied to secondary publishers. The defence of innocent dissemination was created in common law to ease the burden of liability from secondary publishers who did not know of the defamatory content passing through their hands and were not negligent in their lack of knowledge.[230] In England, this defence was incorporated into the 1996 Defamation Act and transformed into a regulatory regime for website operators in the 2013 Defamation Act.[231] However, Canadian law continues to rely on the defence as it exists in common law.

Although termed a “defence”, there is uncertainty as to whether innocent dissemination limits a secondary publisher’s liability for defamation or whether it negates the defendant’s status as a publisher in the first place. If the former, it is a defence and the onus lies on the defendant. Otherwise, the onus is on the plaintiff to establish that the defendant is a publisher.[232] This ongoing confusion in the case law illustrates the instability in these legal doctrines and suggests that they may not offer a solid foundation for legal principles addressing modern secondary publishers like internet intermediaries.

To add to the confusion, the concepts of publication by omission and secondary publication overlap to some extent. In their LCO commissioned paper, Emily Laidlaw and Hilary Young untangle these by drawing 3 distinctions. First, the onus is on the plaintiff to establish that one is a publisher by omission where it has adopted a defamatory statement already published. In contrast, secondary publishers are already publishers and the onus is on the defendant to establish the innocent dissemination defence. Second, knowledge of specific defamatory words is necessary to be a publisher by omission whereas it is sufficient to establish general knowledge of the existence of a libel in order to disprove an innocent dissemination defence. Third, publishers by omission are publishers after the fact whereas secondary publishers are involved in the primary publication.[233] Again, the conceptual overlap here combined with fine distinctions and inconsistent case law raise the issue whether reform is necessary to build coherent principles around liability for publication generally and internet publication in particular.

In their paper, Laidlaw & Young argue that the publication element of defamation should be redefined for all communications (online and offline).[234] They would dispense with the distinction between primary and secondary publishers and import a requirement that specific words be deliberately communicated. Only so-called primary publishers would be legally responsible for defamation under this model and the category of publication by omission would be eliminated. We discuss this possibility further in the chapter on Internet Intermediaries.

2. Evidence Needed to Establish Online Publication

To establish that defamatory material was published, it is necessary to prove that the material was received and understood by a third party. In the case of newspapers and broadcasts, the plaintiff is assisted by a statutory presumption of publication in the Ontario Libel & Slander Act (LSA).[235] No such presumption exists for online material. In Ontario, one court reasoned that the very nature of the “worldwide web” gave rise to a presumption of publication for materials posted online.[236] However, such a presumption was firmly rejected by the Supreme Court in Crookes v. Newton absent statutory reform.[237]

Instead, courts have attempted to adapt traditional principles on what is necessary to establish publication. In her concurring decision in Crookes v. Newton, Deschamps J. listed the following factors as relevant in determining whether an inference of online publication should be made:

  • whether the link was user-activated or automatic
  • whether it was a deep or a shallow link
  • whether the page contained more than one hyperlink and, if so, where the impugned link was located in relation to others
  • the context in which the link was presented to users
  • the number of hits on the page containing the hyperlink
  • the number of hits on the page containing the linked information (both before and after the page containing the link was posted)
  • whether access to the Web sites in question was general or restricted
  • whether changes were made to the linked information and, if so, how they correlate with the number of hits on the page containing that information
  • evidence concerning the behaviour of Internet users.[238]

While internet analytics involving subscriber numbers, hit counts and IP address identification will be useful in establishing online publication, the fact remains that these numbers do not establish how many (if any) users actually read the material.[239] Courts have inferred publication in the case of bulletin boards or online forums but only where people have registered as members or in analogous circumstances.[240]

In England, courts have determined that internet publication must be to a substantial number of people in the jurisdiction, rather than just one individual as in pre-internet law. This was deemed important to adequately preserve freedom of expression as protected in the Human Rights Act, 1998.[241]

The upshot is that the case law does not currently provide clear guidance on what evidence will be necessary to establish online publication. The question is whether the case law should be permitted to develop incrementally or whether a statutory presumption of online publication in certain circumstances is advisable.

3. Where Does One Online Publication End and the Next Begin?

In Ontario, each communication of defamatory content is a separate publication giving rise to a separate cause of action. However, it is not entirely clear in the internet context what amounts to a single publication under existing law. In one Australia decision, traditional principles were applied to hold that separate letters and materials on the same website constituted separate publications where the parts of the site had different substantive identities, forms and purposes.[242] However, more recent decisions have called into question this approach and suggested that hyperlinked articles may form part of the same publication in certain circumstances.[243]

The difficulty here in applying traditional legal analysis to the online context may be attributed to a broader trend in internet technology. Kevin Kelly, in his book, The Inevitable, applies the term “flowing” to describe the phenomenon in which tangible units of information pre-internet (for example, encyclopedias) are transformed online into a fluid collection of content connected by hyperlink and subject to constant change (for example, Wikipedia).[244] To the extent this is the case, there may continue to be problems applying pre-internet concepts like publication to the new internet reality.

4. Liability for Online Republication

The concept of republication can also be challenging in the internet context. Traditionally, an original publisher is not responsible for republication of a defamatory statement unless the republication was authorized or intended, or was in some other way the natural and probable result of the original publication.[245] Instead, responsibility lies with the republisher. For example, an author who quotes a defamatory statement from an earlier book is responsible for the defamation as a republisher.

In the internet context where material may be copied, shared, linked or forwarded exponentially, this traditional approach to republication raises the spectre of perpetual or unbounded liability.[246] A controversial decision in this respect is Pritchard v. Van Nes [2016].[247] A British Columbia court held that the comments, shares and reacts resulting from defamatory Facebook posts were themselves separate instances of defamation. Then the court went further and held the original author liable for these third party comments on the basis that “the nature of the medium, and the content of [the] initial posts, created a reasonable expectation of further defamatory statements being made”.[248]

The facts of the case are not unusual. The defendant posted several comments to her Facebook page implying that her neighbour might be a pedophile. These comments were automatically transmitted to the Facebook pages of her 2059 Facebook “friends”. Thirty-six of the defendant’s friends commented on her posts with their own critical statements. One of her friends copied her posts and forwarded them to the school where the plaintiff was employed as a teacher. Although the defendant deleted her own posts less than 30 hours later, the second generation posts were still visible on her friends’ timelines. The Court described this ripple effect as the posts having “gone viral”.[249]

The Court held the defendant liable for the republication of her posts, reasoning that she had implicitly authorized them:

In my view the nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow.[250]

This reasoning arguably deviates from established principles of third party liability in tort law generally and, to this extent, illustrates a poor fit between traditional defamation principles and internet communications.[251] In a blog review of the case, Emily Laidlaw discusses the need to clarify the law of publication and the differences between intermediaries and content providers. She also points out an important distinction between traditional communications and social media communications that is not accounted for in our current body of defamation law:

We do have a real problem with mobs online and this stretches beyond defamation law to privacy, harassment, revenge pornography, and other abuse and bullying. In my work I have sought to interrogate the nature of this mob to address the kind of law reform needed to tackle the serious harm suffered by the victims. However, this requires a larger wholesale reform of the law.[252]

The analytical confusion illustrated by the Pritchard v. Van Nes decision again suggests that the traditional principles of republication may require reconsideration in the internet defamation context.

5. The Single Publication Rule

The phenomenon of ubiquitous internet republication also has procedural implications. Traditionally in defamation law, every communication of a defamatory statement founds a separate cause of action.[253] This means that a new limitation period begins to run in relation to each publication or republication of the statement. It ensures that a plaintiff is able to sue in relation to all reputational harm arising from republication as well as the original publication. This “multiple publication rule” continues to be the law in Ontario.[254]

The multiple publication rule made sense in pre-Internet days where it was more difficult to republish a defamatory statement (publishing another newspaper article for example). It was still possible for the parties to have a relatively clear idea of when the limitation period began to run and when it would expire. However, the rule is increasingly nonsensical in the internet context where republication of defamatory statements can be virtually endless and impossible to control or even to track, and the first publication is permanently available. In these circumstances, pinning the limitation period to e