At the recent conference, “Defamation Law and the Internet: Where do we go from here?”, organized by the Law Commission of Ontario, the luncheon keynote focused on the issues of extra-territorial jurisdiction, anonymity, and unpublishing with respect to resolving online defamation claims.
Too easy to assume jurisdiction in this global mess
After a brief overview of Canadian jurisprudence on when the courts should assume jurisdiction over extra-territorial matters, Paul Schabas, one of Canada’s leading media and constitutional lawyers, expressed his concerns over Canada’s tendency to develop over-reaching rules on exercising jurisdiction over foreign defendants.
For a long time, issues of the choice of jurisdiction in private international law disputes have remained thorny for the bench and for the bar. However, recently in Club Resorts ltd. v Van Breda, the court increased predictability and certainty in the “real and substantial” test for assuming jurisdiction. In the context of tort actions, a court may assume jurisdiction based on “presumptive connecting factors” , as identified in Van Breda, however, these presumptive factors are subject to a defendant’s rebuttal.
The tort of defamation, as Mr. Schabas noted, is committed “where the words are read”. If read from the internet, the tort is committed where the offending content is read or downloaded. In such cases, the Supreme Court of Canada (SCC) has implied that the jurisdiction in which the offending content is downloaded is the appropriate forum for the dispute. This, however, may result in conflict among multiple international jurisdictions. Nevertheless, a forum may decline jurisdiction in cases where a more appropriate forum is available to the parties. In order to avoid becoming the next “libel tourism” country, Mr. Schabas argued that there has to be a lot more restraint in this respect in Canada.
In Google Inc. v. Equustek Solutions Inc., the issue involved whether the court can order Google to globally de-index websites. The SCC held that on balance, a worldwide order is the only effective way to mitigate harm to Equustek. In dissent, Per Côté and Rowe JJ. held that “While the court had jurisdiction to issue the injunctive order against Google, it should have refrained from doing so.”
In dealing with international defamation disputes, as Mr. Schabas pointed out, Canada needs to be wary of issues of comity with respect to other countries that have less robust rules on protecting freedom of speech. In addition, it would be difficult to enforce decisions which are global in nature, especially in countries like the U.S, where freedom of expression is strongly protected. For example, when the U.S District Court of Northern California granted Google a temporary injunction blocking the enforceability of the Canadian order in Equustek in the U.S., the District Court held, “Google is harmed because the Canadian order restricts activity that Section 230 protects.” The company was held to be protected as a neutral intermediary under Section 230 of the Communications Decency Act 1996.
Anonymity breeds defamation
Maanit Zemel, drawing from her experiences in dealing routinely with cyber-bullying cases, raised issues about individuals using social media and harassing others behind a veil of online anonymity. She noted that anonymity makes online defamation cases unique and raises concerns of access to justice. A satirical meme of Abraham Lincoln which said, “...if it’s on the internet, then it must be true...” illustrates how a person may perceive any information available online. As Ms. Zemel argued, anonymity breeds defamation and therefore, lifting the cloak of anonymity can resolve a majority of issues without having to take the road of expensive litigation. However, she also lauded the high threshold test to obtain Norwich orders, which helps to protect individuals’ Charter rights and particularly, the right to remain anonymous on the internet.
Accessibility is an important consideration and, presently, the process to remove content following a take down request is complicated, costly and comes with minimal chances of success for individuals filing those requests to the ISPs. Under the current regime, Ms. Zemel said a lawyer’s advice would be along the lines of “..it is going to cost you a lot of money and maybe there is 50% chance to resolve your issue”. Ms. Zemel recommended a hybrid independent tribunal, such as tribunals for domain name resolution, and notice and notice provisions under the copyright regime. Ultimately, there is a need to involve intermediaries and plot responsibilities unanimously, argued Zemel.
Take it down, it’s not what I want!
Canadian media policies are alike in not accepting the increasing number of requests to “unpublish” content. As Kathy English from the Toronto Star noted, reasons for “unpublishing” requests vary from simple source remorse or not liking the picture anymore to the most vexing ones involving criminal charges. Generally, media companies do not take down content once it is published because of underlying policies on ethics and transparency. However, in situations where criminal charges are withdrawn shortly after an arrest, where someone is acquitted or discharged, media policy allows alteration to the existing content. This is usually achieved by way of the addition of an editor’s note at the top of the published article.
Similarly, the media industry advocates against the "right to forgotten" as an infringement of the freedom of press and the Charter. However, any potential changes in privacy law may impact these policies.
The Privacy Commissioner in a recent report announced that the ability to request de-indexing and takedown, and the remedies related to online reputation already exists in the Personal Information Protection and Electronic Documents Act (“PIPEDA”). The report also did not explicitly recognize the European Union version of the "right to be forgotten". For Mr. Schabas, the report is provocative but it falls short of balancing privacy rights with the freedom of expression.
Regarding “unpublishing” requests, debates are ongoing with respect to what are acceptable “legal and compassionate” grounds for approving these requests. As Ms. English mentioned, the National News Media Council is working on policies and trying to answer hard questions such as, “Who should decide on unpublishing requests?”, “Do media companies really want their content taken down without their consent?". All in all, the media industry's move to revamp their policies in order to balance the public interest with their long-standing ethical values regarding online and offline publications is a move in the positive direction.
Haramrit kaur is an IPilouge Editor and a LL.M candidate at Osgoode Hall Law School