On May 3rd the Law Commission of Ontario (LCO) hosted an international conference examining how defamation law should be reformed in light of “far-reaching developments in law, technology, and social values.” The first panel of the conference, Rethinking Defamation Law: The Setting for Reform, provided an overview of defamation law in Canada and some factors that could contribute to positive change in the area. The panel was composed of Osgoode Hall Law School professor, Jamie Cameron, media lawyer and author Brian Rogers, and London School of Economics Associate Professor of Law Andrew Scott.
Defamation Law in the Canadian Context
Prof. Jamie Cameron opened the discussion by noting that there is not a conclusive social theory of defamation in the Canadian context [1], and, therefore, at some point, Canadians will have to determine, in specific, why we care about reputation. Nevertheless, Prof. Cameron stated, the absence of foundational principles concerning defamation law should not preclude us from developing the law surrounding internet defamation.
Each panellist agreed that the tort of defamation is overly easy to establish and unfair to potential defendants. In Ontario, the tort of defamation is one of strict liability, and there is no cap on the damages that can be awarded in a successful claim. Furthermore, the LCO has stated “many, if not most” defendants in defamation claims are media organizations,” and, as Brian Rogers noted, this can have a chilling effect on journalists and the media who must report on news that could damage the reputation of the parties involved. Thus, as Rogers put it, because the media performs a critical role in society, by informing the public about the world around them, guarding the freedom of the press against frivolous and vexatious defamation claims is crucial for effective democracy.
Despite issues with the Canadian approach to defamation cases, Rogers sees a definite trend emerging in the law to address unfair advantages held by the plaintiff. For example, prior to Pizza Pizza v. Torstar, only the plaintiff could define the meaning of the alleged defamatory expression. Now, defendants can put forth their interpretations of meaning and prove them valid.[2] Another example is how prior to WIC Radio v. Simpson, Ontario courts instructed jurors that only a “fair-minded” criticism was acceptable as expression. This was problematic because what was “fair-minded” more often pertained to beliefs that the juror also shared. Now, the fair comment defence has been strengthened to include expression that could be honestly expressed by someone based on proven facts provided it is not malicious. Following this, the SCC in Grant v. Torstar added further protections to those who take reasonable steps to verify the truth in what they are publishing. Finally, anti-strategic lawsuit against public participation (SLAPP) legislation has been passed in many provinces including Ontario in 2015.[3]
Considerations Moving Forward
The purpose of the LCO’s project on Defamation Law in the Internet Age is to determine ways to reshape the law. To guide our reform, Cameron highlighted five critical points of consideration. First, what aspects of an individual’s reputation are we are trying to protect? Second, what actions cause harm to an individual’s reputation and are defamatory? The internet and social media have obfuscated our understanding of this because our notion of reputation is increasingly fluid, ephemeral, open to challenge, and less protectable. Also, when we are answering the first two questions, we must also consider what community values we are using to establish our framework. After all, the internet has broadened the concept of community to more than just a physically measured locale. Fourth, it is essential to recognize that the internet has also provided a broader avenue for counter-speech and counter-measures to defamation. Further, online complaint processes by intermediaries and the judiciary are becoming increasingly common and advantageous. Lastly, the advancement of technology has made the enforcement of publication bans increasingly difficult. As Justice Lamer put it in Dagenais v. Canadian Broadcasting Corp, the “jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity”.
Andrew Scott expanded on the challenges that come with technological advancement. One example is appropriately regulating internet intermediaries.[4] We must strike a balance between protecting them from frivolous litigation, on the one hand, and ensure they are not perpetuating defamatory claims, on the other. Scott noted that we must also be aware of the co-development of doctrines in privacy law and data protection law on shared topics like internet intermediaries.
Scott also discussed the challenges that arise after legislation is passed. At the moment, the LCO is considering if Ontario should adopt a ‘serious harm threshold’ in establishing the tort of defamation. This would mimic the UK Defamation Act, 2013. However, jurisprudence in the UK has shown that determining what is “serious” has not been consistent. In Lachaux v Independent Print & Ors, Scott remarked that the Court of Appeal chose to ignore the relevant legislation, and, instead, applied the pre-existing common law. Interestingly, in the Canadian context, Rogers noted that the most significant reforms have happened through case law and not legislation, and, thus, it will be interesting to see how the Ontario Court of Appeal interprets their first case invoking the new anti-SLAPP legislation.
Ultimately, we must consider multiple factors when discussing reforms to defamation law in the internet age. Recognizing the relevant factors and learning from how other jurisdictions have dealt with similar challenges is a prudent start when deciding how to reform our system.
Sebastian Gorlewski is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.
[1] Aside from some glib references to ‘dignity’ in Hill v Lucas
[2] Pizza Pizza Ltd v Toronto Star Newspapers Ltd, 1998 Ont Ct Gen Div (http://canlii.ca/t/g19tz). See ‘Analysis’ section for why previous restrictions were problematic.
[3] See backgrounder on Ontario Protection of Public Participation Act for some of the problems associated with SLAPP (https://news.ontario.ca/mag/en/2015/10/protection-of-public-participation-act.html).
[4] Internet Intermediaries are online platforms which host and provide access to content. They are the subject of discussion in panel 3 of the conference.