Panel 1: Rethinking Defamation Law: The Setting for Reform
By Isabel Dávila, Student, Osgoode Hall Law School
The speakers for the panel titled ‘Rethinking Defamation Law: The Setting for Reform’, were, Jamie Cameron, professor at Osgoode Hall Law School, York University; Brian Rogers, Toronto barrister, and adjunct professor at Ryerson University’s School of Journalism, and Andrew Scott, associate professor in Law at the London School of Economics.
Jamie Cameron began her intervention by explaining the need for setting a theoretical structure for defamation law if we are to reform it for the digital age and the need to consider 5 key points: nature of reputation, nature of defamation, concept of the community, principle of accountability and manageability challenge. Brian Rogers then criticized the current common law of defamation, particularly the presumption of harm, and the lack of a cap in damages. Finally, Andrew Scott referred to the possibility of innovative solutions and having to face the question of whether or not the legal forum is the appropriate forum to deal with defamation in the digital age.
Solutions are urgent, especially when it comes to the harm presumption, in order to protect the Charter right of freedom of speech. Online solutions such as the right to reply or mandatory corrections are highly practical, but we must be careful since the use of such in excess and untamed may cause even more of a chilling effect on freedom of expression. Undoubtedly, it is time for the legislature to take steps in correcting and reforming the law of defamation, especially if we are to catch up with the digital age in time.
Panel 2: The Harms and Values Underlying Defamation Law in the Internet Age
By Justin Khorana-Medeiros, Student, University of Toronto, Faculty of Law
What are the objectives of defamation law and how do those objectives overlap with privacy concerns? The conference’s second panel held a spirited and insightful discussion on these questions. First, Professor Jane Bailey, University of Ottawa, presented her research regarding young Canadians’ interactions with internet defamation. The interviewees offered frank commentary on the upsides and downside of anonymity, the way in which reputation differs depending on the social media platform, and their fears of being punished for youthful indiscretions by future employers.
Professor Andrew Kenyon, University of Melbourne, overviewed his impressive comparative empirical work across both common and civil law jurisdictions, noting the high degree of variety in defamation and privacy jurisprudence. Dr. Kenyon brought out the important ways in which privacy and defamation are distinct yet often related interests; for instance, the defence of truth is clearly appropriate for one, and inappropriate for the other.
Dr. Randall Stephenson underlined the degree to which defamation is undertheorized across the common law world. Dr. Stephenson advocated reviving Biasi’s theory of the ‘Checking Value of the Press’, which may, depending on the specific political-institutional context of a given nation state, call for a threshold as high as ‘actual malice’ or even ‘absolute privilege’ to protect press freedom.
While the panelists generally shared a consensus that plaintiffs should have to prove harm, Dr. Bailey sounded a note of caution, observing that a higher burden of proof on the plaintiff disadvantages poorer complainants (who rarely have access to justice via the tort of defamation to begin with). Several of the questions from the audience revolved around the right to be forgotten, which moderator Peter Downard noted involves not only defamation law, but equally a failure to regulate “Big Internet” – this requires us to determine whether companies like Google are more akin to publishers, or are merely “intermediaries”.
Lunchtime Debate on Key Issues
By Emily OKeefe, Student, University of Windsor, Faculty of Law
The lunchtime panel consisted of three outstanding and engaging professionals: practitioners Paul Schabas and Maanit Zemel, and Kathy English, Public Editor of the Toronto Star. All three panelists raised questions about the inherent difficulties implicit in defamation law and the double-edged sword that is anonymity. On one side of the sword, Maanit Zemel spoke passionately about the power that anonymity can give us on the internet, allowing us to have almost a carte blanche to express our views. The problem emerges when we want to bring those who make defamatory statements to justice and are effectively blocked by what Maanit eloquently described as the “veil of anonymity.” Kathy English brought to light the very different plight of those who wish to be forgotten on the internet, or to use the term she coined “unpublished.” This raises several thought-provoking questions such as who has the right to delete a matter of public record, and if we exercise this right are we harming or helping the public? Interwoven through all three discussions was the notion that defamation is an expensive business.
Paul Schabas discussed the issues that arise when there is a clash of jurisdictions in defamation cases, peppering this conversation with examples of cases he has worked on and the lingering effects of the Van Breda decision. Maanit Zemel explained the incredible expense related to obtaining Norwich Orders and made a fascinating suggestion that independent tribunals should be set up to deal with identifying those online who post defamatory content to save time and money for plaintiffs. What I found personally interesting was the discussion surrounding the appropriate remedy in defamation cases and how this differs from classic civil litigation. While I agree that a monetary award is unable to truly repair the damage from defamatory statements, I can’t help but wonder what other remedies the courts have the power to enforce. Each speaker did an exceptional job in outlining how reputation transcends the constraints of money, judicial action, and anonymity in today’s modern world.
Panel 3: Responsibility for Defamation and the Problem of Intermediaries
By: Kiran Waterhouse, Student, University of Toronto, Faculty of Law
Throughout the conference, speakers described the Internet using a variety of metaphors. These ranged from understandings of the Internet as the sum of interactions between actors, to one notable description of it as an unattached, nebulous orb floating in cyberspace. Creative liberties aside, these descriptions highlight the fact that aspects of the Internet defy description because they are unlike anything that has come before. This theme was particularly relevant in Panel Three’s discussion on the growing role of Internet intermediaries in defamation law.
Panel Three, Responsibility for Defamation and the Problem of Intermediaries, was comprised of Professor Hilary Young from University of New Brunswick, Cambridge Lecturer Christina Angelopoulos, and Mozilla Open Web Fellow Bram Abramson. Professor Giuseppina D’Agostino acted as moderator. While each speaker tackled the issue of intermediaries using a different theoretical approach, there were two common themes that resonated across the panel. What is the nature of intermediaries’ responsibility for defamatory content posted online, and what liability should they should hold for this content?
The panel was clear in its conclusions that intermediaries should continue to play a facilitative function, and should not be presumed to be responsible as publishers for defamatory statements that pass through their control. Just as an illiterate printing-press operator’s act of configuring his machine should not give rise to his own liability for the defamatory statements that emerge from the hot press, nor do we want to capture intermediaries for defamatory statements of which they have no knowledge or no intent to facilitate.
The solutions proposed by the panel revolved around a need for increased regulation. Ideally, this regulation would strike an appropriate balance between the interests of intermediaries, the complainant and the publisher, while also tackling some of the broader legal issues raised by online defamatory content.
Panel 4: Resolving Online Defamation in the Internet Age
By: Michael McNeely, Student, Osgoode Hall Law School
In the frontier of online defamation, it can seem as if we lack adequate policies and procedures to resolve conflicts. Even in the Wild West, there were “civil” rules of how to have a duel at high noon. In an engaging panel moderated by Professor Trevor Farrow, and including Professors Emily Laidlaw, Ethan Katsh, and Darin Thompson, we discussed potential ways of addressing defamation conflicts outside of the traditional court system.
As Professor Laidlaw expressed, traditional methods of dispute resolution take a very long time and are less able to keep up with events and concerns that need attention immediately (i.e. today’s 8 AM posting of an unwanted image online may cause great reputational harm by the time I am able to go to court). Furthermore, people suing for defamation are less likely to want pecuniary damages, and as such, traditional litigation is not necessarily helpful. Professor Laidlaw proposes reform that allows for an online dispute resolution (ODR) tribunal to address these kinds of conflicts – with the technological capacity to address a large variety of defamation conflicts quickly and accurately. Professor Katsh and Darin Thompson illustrated two types of ODR (which they helped to create) – the eBay dispute resolution mechanism and the British Columbia Civil Resolution Tribunal, respectively.
I agree with the panel members that reform is sorely needed in this area. Solutions need to invoke confidence in the process amongst disputants. I spoke with a lawyer today who lost a client because of unfounded and vindictive reviews online, and was unsure of what process to follow to preserve her reputation and career. It is important that knowledge be consolidated within an easily-accessible forum and process, and why not have it online – after all, tha