1.  What is the LCO Defamation Law in the Internet Age Report?

The Defamation Law in the Internet Age report contains the LCO’s recommendations for reforming Ontario defamation law to address “internet speech”. The report is the result of an extensive four-year process of multi-disciplinary research and national and international consultations. The LCO has re-examined defamation law from first principles to determine how the law should evolve to protect Ontarians from online reputational attacks while protecting freedom of expression.

 

  1. What is the Law Commission of Ontario?

The LCO is Ontario’s leading law reform agency. The LCO’s mandate is to promote law reform, advance access to justice and stimulate public debate. The LCO fulfills this mandate through rigorous, evidence-based research; contemporary public policy techniques; and a commitment to public engagement. LCO reports provide independent, principled, and practical recommendations to contemporary legal policy issues.

Financial support is provided by the Law Foundation of Ontario, the Law Society of Ontario, Osgoode Hall Law School and York University. The LCO is located at Osgoode Hall Law School, York University, Toronto.

More information about the LCO is available at www.lco-cdo.org.

 

  1. What is Defamation Law?

Defamation law is the law of reputation. It is designed to protect reputation from harm caused by false words. The law tries to balance two conflicting values: the protection of reputation and freedom of expression.

In Ontario, defamation law is governed by the Libel and Slander Act, the common law, and constitutional law, including the Charter of Rights and Freedoms.

 

  1. Why Does Defamation Law Need to be Reformed? What Has Changed with the Internet?

At present, there is no practical remedy for Ontarians victimized by online defamation.

Prior to the internet, defamation complaints typically focused on newspaper articles, books, magazines and radio and television broadcasts. The paradigm defendant was a professional media organization publishing in the public interest, and subject to professional journalism standards and other checks and balances. The common law of defamation and the Libel and Slander Act developed primarily to address the features of these cases.

The internet has led to a new type of defamation claim, including vicious online personal attacks and false online reviews. Deep fakes, trolling, flaming and/or cyberbullying may all involve attacks on reputation. Because they are online, these statements are easily republished and hard to remove. They are also often anonymous, not subject to professional journalism standards and may not involve the public interest.

Traditional defamation law does not provide practical procedures or remedies to resolve many online defamation cases. Traditional court-based litigation is expensive and slow. As a result, practical alternatives are needed that address the problem of anonymous publishers and allow for the resolution of defamation claims “in real time” before extensive reputational harm is able to take hold.

 

  1. Have There Been Reforms in Ontario? What About Other Jurisdictions?

To date, there has been some defamation law reform in Ontario and in other jurisdictions. For example, the Supreme Court of Canada has been active in making incremental advances in protecting free speech. In Ontario, anti-SLAPP legislation provides a procedural route for dismissing strategic lawsuits suppressing fair criticism, including defamation actions. For the most part, however, these reforms do not address the impact of defamatory online speech and the internet.

In recent years, several jurisdictions have reformed their defamation laws, or are considering doing so. For example, the UK passed a new Defamation Act in 2013. There have also been law reform projects in Australia, Scotland, Ireland and Northern Ireland.

 

  1. What is Different About Online Defamation?

Online defamation has several features that, when combined, distinguish it from publications more traditionally subject to defamation lawsuits (including statements published in books and newspapers or heard on television and radio):

  • Online defamation may be easily and instantly republished.
  • Online defamation is often anonymous.
  • Online defamation can cause permanent, ongoing harm.
  • Online defamation does not respect geographic boundaries

The potential scope for reputational harm due to online defamatory attacks is unprecedented.

At the same time, online defamation cases are often ill-suited to the regular civil justice system with its attendant expense and delay. Practical alternatives are needed that address the problem of anonymous publishers and allow for the resolution of defamation claims “in real time” before extensive reputational harm is able to take hold.

 

  1. What are the LCO’s Major Themes?

The LCO’s major themes are:

  • At present, there is no practical legal remedy for Ontarians victimized by online defamation.
  • Law reform is needed to modernize defamation and better protect freedom of expression in an online world. These reforms should build on successful common law developments and Ontario’s anti-SLAPP legislation.
  • The Government of Ontario should introduce a new Defamation Act to promote access to justice and adapt defamation law to the realities of the internet, including social media, online personal attacks, false online reviews, “new media” organizations, anonymous publishers and internet intermediaries.
  • The new Defamation Act should include new legal tools that promote faster, less expensive and better solutions for both traditional and online defamation complaints.
  • Internet intermediary platforms hosting third party content accessible to Ontarians should have new legal responsibilities addressing online defamation. These duties should include a legal duty to take down allegedly defamatory content in limited circumstances.
  • The LCO’s proposals will promote better protection of online reputations and protect freedom of expression more effectively.

 

  1. What Does the LCO Recommend?

The LCO report makes 39 recommendations addressing Ontario’s Libel and Slander Act, the substantive law of defamation, publication, notice, limitation periods, injunctions, jurisdiction, takedowns, internet intermediaries and related issues. The LCO project is based on the most extensive research and comprehensive consultations of defamation law undertaken in Canada.

The report’s major recommendations include:

  • Ontario should introduce a new Defamation Act to promote access to justice and adapt defamation law to the realities of the internet. The new Act should include provisions:
    • Encouraging alternative dispute resolution of online, personal defamation disputes;
    • Establishing a new notice regime for defamation complaints;
    • Establishing a “single publication rule”;
    • Establishing a two-year limitation period for defamation actions;
    • Expanding courts’ authority to order interlocutory injunctions to takedown online content in limited, prescribed circumstances; and,
    • Encouraging courts to order final takedown of defamatory publications.
  • The new Defamation Act should also establish new legal responsibilities for internet platforms that host third party content accessible to Ontarians. These duties should include an obligation to
    • Pass on notice of defamation complaints to online publishers; and,
    • Take down content if the publisher of the content does not respond to notice.
  • Internet platforms that do not fulfil these duties should be liable for court fines. In order to protect free expression, intermediary platforms should not be considered publishers where they passively host third party content.

 

  1. Will It Be Easier to Remove Offensive Online Content?  What if the Publisher is Anonymous? 

Under the LCO’s proposal, it will be easier to remove offensive, defamatory online content.

The LCO is proposing two reforms to address this content.

First, the LCO is proposing an innovative notice and takedown procedure that could be used by complainants to have content removed from intermediary platforms that are passively hosting that content. In the LCO model, complainants would be able to notify an intermediary platform of allegedly defamatory material being hosted on the platform. The platform would not assess the legitimacy or strength of the defamation complaint but would pass the complaint on to the publisher. The publisher would have a short time to respond. (The LCO recommends two days.) If the publisher does not respond, the platform would be required to take down the offending content. If the publisher does respond, the complainant would pursue the publisher directly, either informally or by a defamation action.

Second, the LCO is proposing a number of ways to promote informal, negotiated resolutions of these claims.

Both processes would apply equally to anonymous publishers. A publisher couldn’t avoid having their defamatory content taken down simply by remaining anonymous.

 

  1. How Will This Affect Online Review Sites, Such as Restaurants or Contractors?

The LCO’s process should discourage false and defamatory online reviews because it gives restaurants/contractors/others subject to online reviews a meaningful opportunity to challenge false reviews, while protecting the reviewer’s freedom of speech. Existing content moderation policies would continue to exist but the LCO’s process would offer an additional legal tool for taking down defamatory reviews quickly and easily.

 

  1. How Do the Recommendations Protect Free Speech?

The LCO proposes several important reforms to better protect freedom of expression:

First, the notice and takedown process would protect free speech by giving online publishers an early opportunity to stand behind their content in response to a defamation complaint. A publisher would not need to defend the content. It would be enough to oppose the takedown request in order to ensure the content stays online.

Second, the notice regime would encourage informal resolution of defamation disputes. Publishers would be able to avoid a lawsuit by making reasonable efforts to address the complaint. For example, a publisher might offer the complainant a right of reply. If a publisher acts reasonably in response to a complaint, this would limit the plaintiff’s right to damages in a defamation lawsuit.

Third, the LCO’s proposal would also improve protection for free speech at the platform level. Right now, platforms that passively host third party content risk liability in defamation law as secondary publishers of that content. This gives them the incentive to remove all controversial content, whether or not it is defamatory. The LCO’s proposal would replace this risk of liability with statutory duties to administer notice and takedown. This means that platforms would no longer be encouraged to take down legitimate content. Instead, it would be for the original publisher of the content to decide whether it should be taken down.

Fourth, the LCO makes several recommendations to improve the court process for defendants subject to defamation actions. For example, two recommendations would protect free speech by restricting liability for “republishing” allegedly defamatory content. Other recommendations directed at multi-state defamation actions would make it easier for publishers to assess their risk for defamation lawsuits in Ontario.

 

  1. Will People Still Have to Go to Court?

The LCO’s proposal is designed to allow many online defamation claims to be resolved cheaply and efficiently through notice and takedown or informal dispute resolution. The formal court process would still be available for all defamation claims to protect the important legal rights at stake. In practice, court actions would more likely be used in higher value or more complex cases, where the plaintiff has a public reputation and/or the claim involves a professional media publication.

 

  1. Who Will Benefit from the Report?

Many individuals and organizations will benefit from this report, including:

  • Individuals who have been the subject of defamatory online attacks;
  • Small business who have been subject to false online reviews;
  • “Traditional” media organizations and publishers, including newspapers and broadcast media;
  • “New media” organizations and online publishers generally;
  • Internet intermediaries, including platforms hosting third party content (such as Facebook and Twitter);
  • Individuals and organizations committed to promoting freedom of expression and/or internet platform responsibility;
  • Governments considering if or how to regulate content on the internet and/or promote internet platform responsibility;
  • The justice system; and,
  • The general public.

 

  1. Who Did the LCO Consult? 

The LCO consulted with a broad cross-section of defamation and internet stakeholders, including:

  • Defamation and technology law experts, practitioners, judges, go