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Defamation Law in the Internet Age

//Defamation Law in the Internet Age
Defamation Law in the Internet Age 2018-05-23T16:22:11+00:00

Project Brief

The LCO’s project has been referred to as the most comprehensive analysis of a defamation law framework to date, anywhere in the world. The project is examining the underlying purpose and function of Ontario’s defamation laws and how defamation law should be updated to account for “internet speech,” including social media, blogs, internet platforms and digital media.

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. However, 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).

Now, in the 21st century, the advent of the internet has brought many of the legal principles underlying defamation law into question. 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. Furthermore, 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.

These developments raise a host of specific issues in defamation law, including whether and when internet intermediaries should be liable for publications posted by others, when courts should assume jurisdiction over multistate internet defamation actions, whether notice provisions applicable to traditional media should be extended to others, and so on. It also raises more fundamental issues, such as who is the media, is the nature of reputation changing, is the nature of privacy changing and what is the relationship between privacy and defamation law.

The project will develop recommendations for updating the law to reflect the social and technological developments that will continue well into the future.

For more information about this project, we invite you to sign up for updates or get in touch with the Project Head, Dr. Susan Gratton, at sgratton@lco-cdo.org.

 

Recent News

  • The LCO’s application to host a panel at RightsCon Toronto 2018 was successful. On Thursday, May 17, the LCO presented its panel, Reforming Intermediary Responsibility: Testing a Human Rights Centred Framework Beyond the Liability and Immunity Divide.
  • On May 3, 2018, in partnership with Professor Jamie Cameron and Professor Hilary Young, we hosted our conference, Defamation Law and the Internet: Where Do We Go From Here? Over 140 people participated in the conference either in person or through the live webcast. The conference featured a strong roster of Canadian and international experts, in various areas of defamation law. More information about the conference, including a program and speaker biographies can be found here.
  • In April 2018, the LCO made a submission to the Office of the Privacy Commissioner of Canada (OPC) in response to its draft position on online reputation. The LCO’s submission addresses the relationship between PIPEDA – interpreted by the OPC to address harm to online reputation – and defamation law in Ontario. The LCO recommends further study before the OPC implements a de-indexing and source takedown regime in Canada.
  • On November 6, 2017, the LCO released the project’s Consultation Paper. We kicked off consultations with a public lecture and interactive panel featuring Dr. Daithi MacSithigh (Professor of Law and Innovation at Queen’s University Belfast) and John D. Gregory (Advisory Group member and former General Counsel, Ontario Ministry of the Attorney General).
  • On October 31, 2017, project head Sue Gratton appeared on 6 live radio morning shows across Ontario: Windsor, Thunder Bay, London, Kitchener-Waterloo, Sudbury and numerous rural communities in Southern Ontario. Sue had the opportunity to tell listeners about the project and to encourage the public to participate in the project’s consultations process.
  • In October, 2017 project head Sue Gratton was interviewed by CBC Go Public in a story about legal protections for consumers who post online reviews and businesses who are the subject of online reviews. A print story was published on October 27, 2017 and the story was also aired on CBC’s The National on October 30, 2017.
  • October 9, 2017: Congratulations to LCO Commissioned Researcher, Dr. David Mangan, for winning the prestigious Best Paper Prize, UK Society of Legal Scholars, for his paper “Reconsidering Defamation as a 21st Century Tort”. Dr. Mangan’s paper was based on research supported by the LCO as part of our Defamation Law in the Internet Age project.
  • On September 18, 2017, a Canadian Lawyer article featured Emily Laidlaw’s LCO commissioned paper on new legal approaches to online defamation.
  • A Lawyer’s Daily article on August 10, 2017, talks about the project, and the release of our commissioned research papers.
  • In July and September 2017, we released the five research papers commissioned by the LCO for this project.
  • In a Lawyer’s Weekly article on August 12, 2016 project head Sue Gratton described the intention of the project to re-examine the balance between the values underlying defamation law – protection of reputation and the Charter right to freedom of expression – in light of social and technological developments over the past 35 years. Advisory Group member Daniel Burnett identified some key issues in the project including the issue of intermediary liability for defamatory content uploaded by others and the possibility of introducing a serious harm requirement as has been adopted in the United Kingdom.
  • The LCO has contributed a brief submission to the Office of the Privacy Commissioner (OPC) consultation on Online Reputation. Although the OPC project  is focused on privacy rather than defamation, both of our projects seek to address the problem of online reputational harm while protecting the Charter  right to freedom of expression. Our submission is intended to ensure that the OPC and LCO are aware of and may benefit from each other’s work.

What We Have Done So Far

  • In the summer and fall of  2015, we began preliminary research in order to determine the parameters of the project.
  • From November 2015 to March 2016, we held approximately 35 consultations with 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, we convened an Advisory Group that will assist the LCO throughout the project. The first Advisory Group meeting was held in April 2016.
  • In June 2016, the Board of Governors approved the project methodology, which includes a project scope statement describing the issues to be addressed in the project.
  • In August 2016, the LCO released a call for research papers describing the LCO’s intention to fund several research papers as well as the criteria and terms for funding.
  • In July and September 2017, the LCO released five research papers commissioned for this project.
  • The Consultation Paper was released on November 6, 2017 and the consultation period commenced with a public lecture and interactive panel featuring Dr. Daithi MacSithigh (Professor of Law and Innovation at Queen’s University Belfast) and John D. Gregory (Advisory Group member and former General Counsel, Ontario Ministry of the Attorney General).
  • During the consultation period, we held multiple focus groups and conducted interviews with a wide range of stakeholders in Ontario. We also received written submissions in response to the questions we asked in our Consultation Paper. We will consider what we heard during the consultation period as we draft our interim report.
  • We culminated the consultation period with an international conference, Defamation Law and the Internet: Where Do We Go From Here?, on May 3, 2018. More information about the conference can be found here.
  • On May 17, 2018, we held our RightsCon Toronto 2018 panel, Reforming Intermediary Responsibility: Testing a Human Rights Centred Framework Beyond the Liability and Immunity Divide. The topic of the panel was the commissioned paper prepared by Professors Emily Laidlaw (University of Calgary) and Hilary Young (University of New Brunswick) for the LCO’s law reform project, Defamation Law in the Internet Age. In their paper, the authors propose a novel, middle ground approach to intermediary responsibility in the context of defamation, which they term notice-and-notice plus. The panel will engage in a roundtable discussion workshopping this proposal. Panellists included:
    • Dr. Sue Gratton, LCO Defamation Project Head;
    • Emily Laidlaw, University of Calgary, Faculty of Law;
    • Hilary Young, University of New Brunswick, Faculty of Law;
    • Paul Schabas, Blakes LLP;
    • Joris van Hoboken, Vrije Universiteit Brussels;
    • Michael Geist, University of Ottawa, Faculty of Law
    • Bertrand de la Chapelle, Secretariat of the Internet & Jurisdiction Policy Network;
    • Daphne Keller, Center for Internet and Society, Stanford University; and
    • Sunita Bose, Change.org

Next Steps

  • We will spend the upcoming months writing the interim report with draft law reform recommendations. The public release of the interim report will be followed by a secondary consultation period, to hear feedback about the draft recommendations. Sign up using the box above, and you’ll be the first to hear when we release the interim report.

Project Documents