Defamation law reform in Ontario
Friday, July 10, 2020 @ 1:08 PM | By Julie Chapman
The report begins with a history on the law of defamation in Canada and reminds us that it was originally designed to “protect reputation from harm caused by false words.” The commission’s recommendations in the report emphasize and reinforce this essential purpose. Further, it is made clear that defamation law must be balanced with the right to freedom of expression as guaranteed by the Charter of Rights and Freedoms, and this countermeasure is given due weight throughout the report.
Three primary recommendations
1. Repeal and replace the Ontario Libel and Slander Act (LSA). The distinction between libel and slander has become obsolete in practice and should be abolished. The commission recommends codifying a new law called the Defamation Act. Other than this fundamental change, substantive changes should be limited and left to the common law, which moves more quickly than legislative reforms.
2. Reform the court process. Procedural changes are required to simplify the current process, add more expedient avenues for dispute resolution and promote access to justice.
3. Reform and support informal resolution of defamation complaints.
Introduce alternative structured means of resolution to decrease the need to take defamation claims to court. Most notably the report recommends introducing a notice and takedown regime, as well as the ability to resolve disputes online.
The above recommendations are based on the report’s Seven Principles Guiding Defamation Law Reform, and can be summarized as follows:
1. Rebalance protection of reputation and freedom of expression: Freedom of expression is guaranteed by ss. 2(b) of the Charter, but Charter rights are not absolute. In the case of defamation, a balance must be struck which provides a means for a party to protect its reputation against false claims.
2. Defamation law needs updating: Emphasized in the recommendations is how the medium is no longer of particular importance in the Internet age. It is the message, whether expressed in writing or verbally, which should be the focus of defamation law. The current differentiation between libel and slander (and the different rules for each) should be abolished.
3. Defamation law is evolving, and reforms must complement, not hinder, such adaptation: The report recommends very limited substantive changes to the law, which means preserving the substantive elements of a defamation claim, such as the presumptions of damage and falsity, as well as the unique elements required to defend allegations of defamation. The rationale being that these elements are well-tested by the courts and the common law system is better suited in allowing the law to evolve with the times. The one exception to a hands-off approach when it comes to substance is that the commission recommends the definition of “publisher” be narrowed to catch only those who intentionally communicate defamatory content.
4. Access to justice and dispute resolution improvements are key: The goal of this principle is to divert low value, high volume claims from the court system. The report reforms focus on structural changes in order to provide multiple avenues for resolution of defamation matters. Timing has become critical given how defamatory material (especially when shared online) has the potential to destroy a reputation in a matter of days. Injured parties need practical options that provide a means of having the offending material removed quickly without having to navigate traditional legal avenues such as costly court injunctions.
5. Address online personal attacks, including negative false business reviews: Expediency in allowing false and injurious information to be taken down in order to mitigate reputational harm is often the primary concern of a plaintiff to a defamation claim. It is not to recover damages at some point down the road after the damage has been done.
6. New obligations for intermediary platforms: In conjunction with 4 and 5, a new notice and takedown regime is necessary to expediate the removal of defamatory content published online. To successfully implement such a regime, co-operation from third-party intermediary online platforms is essential. Based on the report, there would be two main duties imposed on intermediary online platforms: (1) if a notice of defamation is received, it must be passed along to the “publisher” of the alleged offending content, i.e. often an anonymous social media platform user; and (2) if there is no response from the publisher, the intermediary must take down the content. Obviously, relatively short timelines would be necessary under such a regime.
Of particular note is novelty of two aspects of this proposed version of a notice and takedown regime: (i) an intermediary will not be responsible for making a determination as to whether the content is, in fact, defamatory, prior to taking action; and (ii) an intermediary will not be saddled with residual liability because they would not be considered a “publisher” under the new legislation, and therefore not responsible for the defamatory content itself.
7. Defamation law and privacy law should remain separate: Though the commission doesn’t go into great detail on this point, the goal of defamation law differs from that of privacy law, and thus, they should remain distinct areas of law with distinct causes of action. Privacy law seeks to provide individuals with a certain level of control over their personal (identifiable) information, whereas defamation law purports to balance the protection of an individual’s (or institution’s) reputation with the right to freedom of expression. Privacy law is a developing area of law as well, with new protections for individuals, such as the tort of freedom from intrusion and the European “right to be forgotten.”
It remains to be seen if and how defamation law will be reformed in Ontario. The commission’s report outlines a reasonable approach and my hope is that it will keep the discussion moving forward. The Law Commission of Ontario continues to seek advice and feedback on the report.
Julie Chapman is the general counsel and chief privacy officer, LexisNexis Canada.
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