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Defamation in the Era of Digitalization

Today the world is fast moving towards digitalization and artificial intelligence. Legislation and regulations need to keep pace and relevance with these times.

The internet era has revolutionized the publication of content. The traditional media is nearing obsolescence. Radios, newspapers, magazines are the things of past and have been taken over by internet. The buzz words now are twitter, Facebook, Instagram and other types of online blogs and journals.

Though these means are convenient, globalized and user friendly but they come with their perils and hazards of reckless usage. Social media can create a false sense of anonymity which makes it convenient to believe that anyone can criticize, condemn, attack or defame others without getting noticed.

Instant reactions have replaced thoughtful responses! The biggest fallout of this is defaming the fame at the click of a button. Users are in a bubble of illusion that their reactions would go unchecked, unregulated and unnoticed. Keeping this in mind, the Law Commission of Ontario has proposed a new law for the same to burst this bubble.

Before getting into the details, it is necessary to understand the underlying concept of defamation and the legislation surrounding it.

What is Defamation?

Defamation basically refers to remarks and statement made by a person to a third party about an identifiable individual or organization which is false and tends to lower the reputation of the complainant in the society. The test of defamation is an objective test where it is not important that the victim thinks that the statement in question is damaging, rather it depends on what an average reasonable man would think.

There are two kinds of defamation:

  1. Libel: is a defamatory statement which is either published or broadcasted. It is basically referred to as defamation with permanent record.
  2. Slander: is a defamatory statement which is either spoken or conveyed through gestures or signs. It is referred to as defamation with no permanent record.

Freedom of Expression versus Reputation

The Libel and Slander Act was formulated in the nineteenth century and is greatly influenced by norms and values that prevailed during that time. In nineteenth century, people used to be very closely knitted and a vast segment of the society used to share similar values. Hence, the law was formed to basically protect the reputation which was considered to be a property right at that time.

However, this doesn’t hold true anymore. In today’s time, the society has become more diverse and pluralistic where people have developed an individualistic approach. With the emergence of digitalization, globalization and development of mass communication, more importance is being given to freedom of expression as compared to reputation lately.
The defamation law plays an active role in protecting the reputation; however, it needs to be amended to keep up with the changing times and to stop it from hampering people to exercise their freedom of expression.

The traditional defamation law, which was basically designed for media law cases, does not take into consideration defamation in the internet era. However, due to fast growing digitalization; the number of virtual defamation disputes have also risen at an alarming rate. In the absence of a proper legal framework, the judiciary has been able to provide help to the victims of online defamation.

Some of the judgments as pronounced in support are here under:

  • The Ontario Superior Court of Justice in Duncan v. Buckles[1], awarded $50,000 in general damages, $10,000 in aggravated damages and an additional $10,000 in punitive damages for posting defamatory blog posts, YouTube videos and emails.
     
  • In Skafco Ltd. v. Abdalla[2], the defendant published defamatory remarks on social media after a dispute arose between the Plaintiffs and the Defendants over sponsorship of a festival. The Ontario Superior Court of Justice granted a summary judgment awarding $1000 nominal damages and $8000 in general damages to one Plaintiff and $6000 to the other Plaintiff.
     
  • In Wilson v. Wilson[3], the Ontario Superior Court of Justice stated that the remarks posted on Facebook by the ex-wife of the Plaintiff, were false and defamatory accusations. The Court awarded the Plaintiff $15,000 in general damages.
Though the Courts have been of assistance to a certain extent, there is an urgent need for a comprehensive legislation for the same. Keeping this in view, the Law Commission of Ontario (LCO) has recognized the procedural and substantive problems in the present defamation law. It has made 39 striking recommendations to update the law and to promote access of justice to both the complainants and the publishers of the content in dispute, equally.

Recommendations by LCO[4]:

  1. A new Defamation Act repealing the existing Libel and Slander Act.
     
  2. Formation of Online Dispute Resolution Government Tribunal for quicker and cheaper access to justice. This mechanism will aim at resolving online defamation complaints and other forms of online harm.
     
  3. The new Defamation Act should establish only a single tort of Defamation, thus eliminating the distinction between libel and slander.
     
  4. Easing the process of obtaining interim and interlocutory orders from Courts to take down or de-index defamatory content.
     
  5. There should be a two-year limitation period for all defamation claims. Also, the limitation period would begin to run from the date the complainant first discovered or should reasonably have discovered the publication.
     
  6. There should be a single cause of action for both publication and all other republications of a statement.
     
  7. Introduction of a new defense of “opinion” wherein the publisher is no longer required to prove objective honest belief to establish his innocence. This defense will replace the defense of fair comment.
     
  8. Removal of potential liability of intermediaries whose role is to only host the expression and have no involvement in publishing the defamatory content. Thus, only the publisher who committed an intentional act of posting the expression can be held liable.

Apart from the above-mentioned recommendations, the LCO has also suggested a new notice regime under the new act. Currently, no action for libel can be brought against a broadcaster or a newspaper unless a six weeks’ notice is provided by the complainant to the publisher. Besides this, there is no notice requirement for other defamation actions.

The LCO recommends that there should be a notice requirement for all kinds of publications whether it’s on an online or an offline platform. Under this new regime, the complainant would not be able to commence an action until four-weeks after the notice of complaint was first served on the publisher of the defamatory content.

Role of Intermediaries under the proposed Defamation Act:

The LCO through these recommendations has imposed various duties on the intermediaries
  1. Internet intermediaries would have to provide a platform on their website where people can submit notices of complaints against defamatory and harmful content. It is the responsibility of the intermediary to forward the notice of the complainant, to the publisher effectively and expeditiously.
  2. It is the duty of the intermediary and not internet providers or search engines to facilitate notice of complaint and take down the defamatory content, unless there is a court order, stating otherwise.
  3. If the intermediary, for some reason is unable to follow the notice of complaint to the publisher or if the publisher fails to respond within two days, then it would be mandatory for the intermediary to take down the defamatory content.
  4. In case intermediaries fail to comply with notice obligations, they can be held liable for statutory damages.

Conclusion
Social media is a means of interacting with each other while being socially responsible. It is not a delusional world where one can be outrageously blunt, aggressive or insulting without exercising abundant caution otherwise it can lead to getting embroiled in legal disputes.

In order to deal with the defamatory content a new paradigm is needed. The new Act would keep a strong check on the material that people publish online.

LCO through these recommendations has recognized the need for a quick and inexpensive system to deal with online defamatory content hence, replacing the traditional court process.
Despite all these relevant recommendations made by the LCO, it would depend upon the Ontario Government to take the final step which is to adopt all, some or none! While these recommendations are currently the work of just one province, this in actual is a worldwide issue.

End-Notes:
  1. Duncan v Buckles, 2020 ONSC 3219
  2. Skafco Ltd. v Abdalla, 2020 ONSC 136
  3. Wilson v Wilson, 2019 ONSC 5726
  4. Law Commission of Ontario, Defamation Law in the Internet Age (March 2020), https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL.pdf

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