Today the world is fast moving towards digitalization and artificial
intelligence. Legislation and regulations need to keep pace and relevance with
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.
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:
- Libel: is a defamatory statement which is either published or
broadcasted. It is basically referred to as defamation with permanent
- Slander: is a defamatory statement which is either spoken or conveyed
through gestures or signs. It is referred to as defamation with no permanent
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, 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
- In Skafco Ltd. v. Abdalla, 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, 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
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:
- A new Defamation Act repealing the existing Libel and Slander Act.
- 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.
- The new Defamation Act should establish only a single tort of
Defamation, thus eliminating the distinction between libel and slander.
- Easing the process of obtaining interim and interlocutory orders from
Courts to take down or de-index defamatory content.
- 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.
- There should be a single cause of action for both publication and all
other republications of a statement.
- 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.
- 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
Role of Intermediaries under the proposed Defamation Act:
The LCO through these recommendations has imposed various duties on the
- 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.
- 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.
- 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
- In case intermediaries fail to comply with notice obligations, they can
be held liable for statutory damages.
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.
- Duncan v Buckles, 2020 ONSC 3219
- Skafco Ltd. v Abdalla, 2020 ONSC 136
- Wilson v Wilson, 2019 ONSC 5726
- Law Commission of Ontario, Defamation Law in the Internet Age (March
Authentication No: AG30753414971-11-820