Brent J. Arnold
Partner
Article
8
The Law Commission of Ontario's multi-year and multi-jurisdictional project to update defamation for the digital age has culminated in the release of a Final Report[1] proposing not only a new defamation statute but also an entirely new dispute resolution regime dedicated to tackling the problem of online defamation.
The extensive and thoughtful report concludes that the substantive elements of defamation law in Ontario—including the presumptions of falsity[2] and damage[3] and the strict liability nature of the offence[4]—should remain undisturbed. However, the LCO does recommend the replacement of the Libel and Slander Act, RSO 1990, c L.12 with a new Defamation Act that would collapse libel and slander into a single tort of defamation, recognizing that even verbal communications end up published on the internet with relative ease and that technology has rendered spoken statements as permanent as written ones.[5]
While the LCO suggests some things stay the same, it as also recommend profound changes to the way in which online defamation claims are pursued. The report recommendations, numbering 39 with many in several parts, include the following:[6]
The Final Report demonstrates a nuanced understanding of the difficulties inherent in pursuing defamation claims in age when anyone with a Twitter account can be a "publisher" and be read anywhere in the world. For example, attention is given to the inadequacy of damages as a sole remedy where the "publisher" of defamatory statements may be an ordinary person without assets to satisfy a judgment. The difficulty of enforcing orders is also acknowledged,[7] noting in particular the statutory immunity of U.S. platforms and search engines from prosecution for the content they host, and the refusal of a California court to give effect to a Canadian worldwide de-listing order upheld by the Supreme Court of Canada in Google Inc. v. Equustek Solutions Inc., [2017] 1 SCR 824.
Privacy professionals will note with interest that the LCO declines to weigh in on the recent emergence of new privacy torts and maintains that "notwithstanding overlapping principles and values in certain respects, defamation law and privacy law continue to be functionally distinct and should remain so."[8] However, the LCO expresses concern about the prospect of a separate de-indexing and takedown regime being introduced into Canadian privacy laws in an effort to bring an EU-style "right to be forgotten" to Canada.[9]
Naturally, the LCO's recommends are only that, and it is up to the Ontario government to decide whether to implement them, ignore them, or water them down. It will be interesting to see how the report is received and how much of it becomes law.
[1] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf.
[2] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at pp.26-27.
[3] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at pp. 23-24.
[4] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at pp.25-26.
[5] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at p.20.
[6] For a complete list of recommendations, Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at Appendix A, pp.105-10.
[7] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at pp.33-34.
[8] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at p.14.
[9] Law Commission of Ontario, Defamation in the Internet Age (March 2020), online: https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf at p.14.
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