Recommended Legal Approaches to Online Defamation

6 October 2017

By Uri Snir
A research paper entitled “Are We Asking Too Much from Defamation Law? Reputation Systems, ADR, Industry Regulation and other Extra-Judicial possibilities for protection reputation in the internet age: Proposal for Reform” published last month takes a close look at the unique challenges posed by online defamation. The paper, written by associate professor at the University of Calgary Faculty of Law, Emily Laidlaw, seeks to answer the following question: “given the reputational harms suffered in the digital age, what kinds of dispute resolution mechanisms would improve access to justice and resolution to complainants?”

The Law Commission of Ontario’s Defamation in the Internet Age Project: The paper was commissioned by the Law Commission of Ontario to provide background research for its Defamation in the Internet Age Project. The project’s mandate is to examine whether the law of defamation (which has its origins in centuries-old case law) should be reformed to better reflect modern societal values and technological advancements. The project will also reassess in the modern context the balance between (i) the underlying values of defamation law – the protection of reputation – and (ii) the freedom of expression protected by our Charter of Rights and Freedoms.

The Problem with Traditional Litigation to Remedy Online Defamation: Laidlaw suggests that traditional remedies are not as effective to address online defamation disputes, because of the speed and reach of online posts. In particular, the prevalence of social media has changed the landscape of defamation law.

Online communications are instantaneous, transnational, interactive, searchable, permanent and sometimes anonymous. The basic questions of who to sue and where to sue can often be difficult in this context. Canadian law cannot be easily deployed to resolve transnational online defamation disputes.

One British Columbia case, Pritchard v Van Nes, illustrates the ease with which defamatory statements can spread online. In that case, the plaintiff posted defamatory comments on Facebook about her neighbour, a middle school music teacher, which implied that he was a pedophile and unfit to teach children. Whereas in the past, such a comment might be communicated to a few friends at a pub, in the digital age, defamation of this type can be communicated with ease across social networking sites, potentially visible to millions of people.

Furthermore, claims that are litigated often face complex legal issues and low potential damages. As a result, although there is a high volume of defamation online, most claims are not worth litigating. The consequence is that for most wronged there is little opportunity for reparation.

A Possible Solution: The empirical data available (from a series of empirical studies in the United States in the 1980s – there is a lack of recent empirical data), suggests that most defamation claimants were driven to sue for non-pecuniary interests, namely to restore their reputation. Damages are rarely the primary reason a claimant decides to sue. As such, Laidlaw concludes that the following features are most important for online defamation resolution:
  • Speed;
  • Accessibility (both in terms of cost and ease of use of process);
  • Containment and de-escalation of disputes; and
  • Technical solutions beyond awarding damages, such as removing content or scrubbing search results to limit the claimant’s reputational harm.
Based on these principles, the paper recommends a multi-faceted approach to resolving defamation disputes involving courts, intermediaries and specialist online tribunals that can resolve disputes more rapidly and expertly. Laidlaw also suggests that online platforms such as Facebook, Twitter, and Snapchat share much of the responsibility and should adopt better company-incentivized complaints mechanisms for users.

Although Laidlaw emphasizes the need for early intervention and a streamlined dispute resolution process, she makes clear that traditional litigation will always be an integral part to resolving defamation disputes. In Laidlaw’s opinion, online dispute resolution (the use of technology to resolve techno-legal issues), or other streamlined processes, are complementary to traditional court actions.

Uncertainties in the Law: In addition to the many procedural issues in dealing with online defamation cases, many questions remain unanswered as to how the law will resolve the substance of the disputes. For example,
  • Could a person be found liable in defamation for retweeting someone else’s thoughts or sharing a Facebook post? In a 2011 decision, the Supreme Court of Canada found that the mere sharing of hyperlinks, without more, does not qualify as publication under defamation law. But does the same apply for retweeting defamatory statements or sharing Facebook posts?
  • Could an online platform like Facebook be held liable for allowing defamatory statements to be published on its website?
  • Could a court in Canada order Google to remove search results worldwide? In June of this year, the Supreme Court of Canada upheld an injunction for worldwide removal of search results in an intellectual property case. But would the same hold true in a defamation case?
  • Is there any redress available against (often anonymous) fake news publications that severely hurt the reputation of well-known figures (and potentially influence a presidential election)?
The Takeaway: Online defamation is an interesting but challenging area of law that is still being shaped in the modern context of internet and social media. We will continue to monitor this area of law and will report on any significant developments. In the meantime, potential claimants should consult a lawyer as quickly as possible upon discovery of an online defamatory post or comment, to determine the best recourse available.

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