LCO recommends new regime for online defamation

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]

• A new notice regime and process beginning with a notice in a prescribed form to the publisher / online platform hosting the publication, followed by a four-week cure period during which no action may be commenced, with optional remedial efforts by the publisher that will be taken into account by a court assessing losses in the event a complaint proceeds to court;
• A two-year limitation period for all defamation claims;
• Statutory interlocutory takedown and de-indexing orders;
• No liability for the publisher for republication of defamatory statements, unless the republication was intended by the publisher;
• Takedown obligations for intermediary platforms hosting third party content, including an obligation to relay notices of complaint to the publishers of the content, and statutory damages for a platform's failure to comply with notice and takedown obligations;
• Exploration of an online dispute mechanism to improve access to justice for defamation victims (recognizing that the cost of litigating defamation claims, relative to the amount typically recoverable, is prohibitive).

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.