Reforming the Law of Defamation
Ontario Law Reform Commission proposes reforms in light of internet defamation
On March 12, 2020, the Law Commission of Ontario (“LCO”) released Defamation Law in the Internet Age (“Final Report”). This Final Report builds on the analysis of the LCO’s November 2017 Consultation Paper, looking at reforms driven by two primary factors:
first, that the internet is now the arena in which much, if not most, defamation occurs and, second, that the internet has had an unprecedented impact on the two core values underlying defamation law: freedom of expression and protection of reputation. (p 1).
In its Final Report, the LCO makes 39 recommendations. For the most part these recommendations do not address the substantive law of defamation, which the LCO proposes should continue to be defined by the common law. Other than some specific proposals, such as narrowing the definition of “publication”, the recommendations address the mechanisms for enforcing defamation law, including through measures involving internet intermediaries such as Facebook and Google.
Many of the report’s recommendation aim at improving access to justice in defamation disputes in Ontario by diverting high volume, low value defamation claims away from the formal court system and encouraging informal, practical resolutions. To accomplish this, the LSO recommendations contemplate three procedural streams for resolving defamation complaints:
- Notice and takedown
All defamation claims would begin with the complainant serving a mandatory notice of complaint of the alleged defamation to the publisher. In certain circumstances, this service might be effected electronically, such as by email, text, or private messaging to a social media account (p 40). Electronic service of a defamation notice is not currently permitted in Ontario.
If the complainant cannot contact the online publisher directly, the notice requirement would be met by sending notice to the intermediary platform about the allegedly defamatory material being hosted on the platform. The platform would then pass the complaint on to the publisher without assessing the legitimacy of the claim and while protecting the identity of anonymous publishers (p 45). The intermediary platform would play a crucial role in improving access to justice in online defamation disputes:
The LCO recommends that the publisher be granted two days to respond to the allegation. If the publisher does not respond within the required time, it would trigger the intermediary platform’s obligation to take down the allegedly defamatory content from its online publication. However, if the publisher does respond, then the complainant could pursue the publisher directly, either by informal means or through a defamation action. (p 71)
- Online Dispute Resolution
The report also encourages the government to explore allocating public resources to developing a voluntary Online Dispute Resolution (ODR) platform as an inexpensive and expedient mechanism to structure and facilitate informal negotiations and resolutions. Specifically, the LCO advocates for a government-created ODR tribunal (p 100). British Columbia has implemented the Civil Resolution Tribunal (“CRT”) to resolve small claims under $5,000, condominium disputes, and recently motor vehicle accident claims below $50,000. The LCO recommends that a government-created ODR tribunal similar to the CRT would improve access to justice in resolving online defamation disputes in Ontario.
- Court action
Court action would be reserved primarily, but not exclusively, for higher value defamation claims involving professional public interest publishers. Other factors would also be considered, including whether the complainant was a private individual or someone with a public reputation, and the nature and extent of reputational harm at issue. Here, a preliminary anti-SLAPP motion would remain available to defendants, and an additional new motion would be introduced for an interlocutory takedown order. This order would no longer be based on the “rarest and clearest” test, bur rather a statutory test that would balance the potential for and extent of online reputational harm suffered by the plaintiff against the public interest in protecting freedom of expression in the circumstances would be introduced (p 57). This would be used “where the potential for reputational harm significantly outweighs the expressive value of the publication at stake” (p 16). With respect to Norwich orders, the LCO recommends that filing a notice for a Norwich order “should automatically put intermediary platforms on notice that they must preserve evidence of the IP address at issue” (p 61).
The LCO summarized these three proposed approaches in chart form.
The Report also proposed some specific changes to defamation law, and suggested other procedural changes. For example, the LCO argued that “disparate limitation periods for different types of publication are no longer justifiable in the internet era” (p 49) and recommended that there be a single limitation period of two years applicable to all defamation claims. The Report also suggested narrowing the definition of “publication” in the context of defamation so that, generally speaking, internet intermediaries would not be liable for defamatory third party (user-generated) content. Instead those intermediaries would be responsible under the notice and takedown regime, but would not face common law liability.