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New defamation law needed to regulate ‘harmful Internet speech,’ LCO reports

Thursday, March 12, 2020 @ 9:33 AM | By Amanda Jerome

After four years of research and international consultations, the Law Commission of Ontario (LCO) has released its "Defamation Law in the Internet Age” report, which proposes 39 recommendations for reforming Ontario’s defamation law to address online attacks on reputation.

The report and its executive summary, released March 12, recommends that the Libel and Slander Act (LSA) should be repealed and “replaced with a new Defamation Act establishing the legal framework for resolving defamation complaints in Ontario.”

In Ontario, defamation law falls under the LSA, the common law, and constitutional law, including the Charter of Rights and Freedoms. The report notes that “the social and technological revolution of the past 30 years has led to a new type of defamation claim.”

“With the evolution of internet communications, anyone can be a publisher and they can publish anything. Defamation law claims increasingly involve individual publishers posting material online that may or may not be in the public interest, not subject to checks and balances, and, in some cases, amount to vicious personal attacks,” the report explains.   

The report points out that the “traditional defamation law framework primarily designed for media law cases has strained to adapt to this new paradigm.”

“Access to justice is a key driver of reform here. These cases are ill-suited to the 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,” the report noted.

Nye Thomas, LCO executive director

The report recommends that a new Defamation Act should “establish a single tort of defamation” and that the “distinction between libel and slander should be abolished …”

LCO executive director, Nye Thomas, said a Defamation Act is needed to “modernize” the law of defamation.

“Right now, the existing common law and Liable and Slander Act are really directed towards traditional defamation claims, that is involving newspapers, broadcast media and the like. The new Act is needed to deal with the phenomenon of online defamatory statements. Right now, there is no practical legal remedy for Ontarians victimized by online defamation. The new Act we recommended would be intended to address those claims more effectively,” he explained.

Thomas highlighted two recommendations for the legal community in particular.

The first one, he noted as the most innovative of the recommendations, is the new “notice and takedown regime” for intermediary platforms.

“This draws upon some of the rules that are used in copyright disputes. Essentially it would impose new legal responsibilities on platforms to take down defamatory content in limited circumstances,” he said.

According to the report, a “prescribed notice of complaint shall include a description of the allegedly defamatory expression, the internet identifier (where applicable), the facts on which the claim is based, the resolution requested by the complainant, the complainant’s contact information, and a statement of good faith. The prescribed form should be written in plain language and should guide complainants in framing their complaint.”

The report recommends that notice obligation “should apply to intermediary platforms hosting third party content made available to Ontario users.” And “Internet service providers, search engines and other intermediaries not directly hosting user content should have no responsibility to pass on notice.”

The second recommendation Thomas highlighted was for defamation law practitioners and dealt with more technical changes to the law.

“We recommend that Ontario adopt something called a ‘single publication rule,’ which is designed to help publishers avoid perpetual liability for republication of their material on the Internet. That’s more of a technical amendment for publishers and media publications,” he said.

According to the report, the single publication rule means that a “single cause of action for defamation exists in relation to the publication of an expression and all re-publications of the expression by the same publisher.” The report suggests that for this rule the “limitation period for a defamation action begins to run on the date that the plaintiff discovers or should reasonably have discovered the first publication of the expression.”

Thomas stressed that the LCO’s recommendations “protect free speech” because they deal with the “possibility of litigation chill for online publishers and platforms right now.”

“Currently, because of the re-publication rules, publishers and platforms are facing this possibility of perpetual litigation risk, which discourages free speech because platforms have an economic incentive to manage their litigation risk, such as taking content down. We’re trying to take away or mitigate that risk by this notice and takedown regime and by our substantive changes to defamation law, which would create a different legal regime for addressing these claims and protect free speech at the same time,” he explained.

The report also recommends that the Ontario government “should explore the potential for an online dispute resolution (ODR) mechanism to improve access to justice in online defamation disputes.”

“This review should take into account the possibility that, in the future, social media councils or other regulatory models may play a similar role to ODR in informally resolving online defamation disputes,” the report explained.

Thomas noted that the LCO’s work in this area is happening in the context of a “national and international conversation around platform responsibility.”

“We think our recommendations fit well into current emerging initiatives around how to regulate platforms,” he said, adding that the recommendations are consistent with where policy is going on these issues.

He believes that the recommendations “can make a positive contribution to those debates, not just in Canada, but internationally.”  

The report also noted that defamation law reform is “concurrent with, and related to, domestic and international concerns about fake news, extreme internet speech and increasing worries about platform accountability.” The LCO’s recommendations “address defamation law within its traditional doctrinal boundaries but also in response to its new reality as one of several legal mechanisms for regulating harmful internet speech.”

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