Rethinking Defamation

Some key areas of possible reform are Internet publications, notice and limitations, access to justice, libel versus slander, and simplifying defences such as fair comment and responsible communication.

Rethinking Defamation

Defamation law has long been a thicket of ancient rules and curious distinctions. It was developed hundreds of years before the advent of radio, television and the Internet. In England, a major reform took place in 2013, addressing issues such as the liability of online intermediaries. In Canada, the need for reform is every bit as pressing, and the rules differ even between provinces.

The Law Commission of Ontario took up the challenge, and since early 2016 has been engaging with defamation lawyers across the country, judges and stakeholders on all sides in a deep examination, going right to some core policies underlying defamation law. Other provinces are watching. The recommendations, expected in the coming months, may well influence uniform legislation across the country.

Some key areas of possible reform are Internet publications, notice and limitations, access to justice, libel versus slander, and simplifying defences such as fair comment and responsible communication.

Consider, for example, someone who is the victim of terrible online statements, often by anonymous writers using an Internet forum located outside Canada, posted from a public library. A remedy is elusive to say the least. How can the law be improved to assist that victim without incurring massive cost? How can the improvement also preserve fairness to the author (who might just be telling the truth) and to the Internet service provider, who cannot really be expected to monitor and investigate tens of thousands of postings each month. Could there be a streamlined but fair system for a notice and takedown?

In contrast, consider those who have Internet pages where third parties can post comments. That includes all us with Facebook pages, right up to a major media outlet. When should there be liability for what others post on one’s electronic space? Decisions in this area are few in Canada, and don’t give very satisfactory guidance. More importantly, they are anchored in an attempt to graft old law onto new problems, rather than the policy question of what the future should look like. That is for the legislature.

In the USA, intermediaries are treated as mere conduits and are immune in virtually all cases under the Communications Decency Act. In the UK reforms, primacy was placed on putting responsibility on authors where known, and not intermediaries. No Canadian defamation statute has yet addressed this vital question.

There are further areas needing attention. For example, a spoken word defamation (slander) is treated in law quite differently from written defamation (libel). For one thing, libel comes with a presumption of damages and slander does not. The complications run deeper, however, as there are a number of exceptions, in which slander is treated like libel in law. The exceptions include statements disparaging a woman’s chastity, or alleging a crime, or claiming that someone has a contagious disease. It might be time to modernize and drop the distinction altogether.

Also, the rules on giving libel notices and limitations vary from province to province so much that we’ve had publications in Ontario newspapers (where there must be a libel notice within six weeks for media publications) end up in the BC courts (where there is no notice requirement). When everything is on the Internet, there is arguably a cause of action every place it is read. That leads to libel tourism issues, which can be minimized if the provincial laws are in synch.

With international libel tourism, the law has tended to permit suits in Canada despite tenuous connections, although Supreme Court’s most recent decision, v. Goldhar, 2018 SCC 28, has shifted the balance to demand more of international plaintiffs. Still, it represents incremental change, when legislation may be necessary.

These are just some of the areas needing attention from legislators. The Ontario initiative might pave the way, and is worth watching.

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