Earlier last month, the Law Commission of Ontario (‘LCO’) held a conference entitled “Defamation Law and the Internet: Where do we go from here? “. This may well have been the most comprehensive review of defamation law in the internet age, at least as proclaimed by the Project Brief of the LCO.
This blog covers the second panel that was comprised of Prof. Jane Bailey (University of Ottawa), Prof. Andrew Kenyon (University of Melbourne Law School), Dr. Randall Stephenson (author of A Crisis of Accountability: Public Libel Law and the Checking Function) and was moderated by Peter Downard (Partner, Fasken Martineau DuMoulin LLP).
Prof. Bailey’s presentation ‘Reputation 3.0’ looked at the intersection of law, technology and equality. She talked about her research project on defamation that was funded by the LCO and focused on 20 diverse young people from the age group 15-21. The participants were asked about their “online experiences with truth and falsity, reputation and anonymity and the quality and utility of existing mechanisms for responding to defamatory attacks”. The research highlighted that, while untrue statements can hurt their reputations, truth can be equally damaging in the context of confidentiality and privacy. This was consistent with the participants’ behaviour online, where they preferred having multiple reputations crafted for different social media platforms. Consequently, the participants preferred responses that maintained privacy and confidentiality, while preserving transparency and accountability.
Her research showed that young people were concerned about privacy and disclosure of intimate images but they preferred community-based responses to reputational harm over escalating the issue by taking matters to the police.
She concluded by stating a few takeaways for law reform. Firstly, legal provisions for protection of reputation are indeed important for control of information. Secondly, reputational harm is better mitigated by community-based responses to individuals and focus should be on rights-based education, rather than civil and criminal litigation, which is helpful only in the most extreme circumstances.
Prof. Andrew, who researched comparative defamation law of Australia, the US and the UK, spoke about how it ultimately boils down to the doctrinal workings and procedural regulations of each jurisdiction. He was of the view that defamation and privacy are two of the greatest challenges in media law. He stated that, historically, only certain aspects of reputation have been protected, such as material that is true or privileged. He argued that data and privacy are connected and that this can be seen from the plethora of high-volume, low-value cases that are being brought before the courts. He argued that as a result, we need to reconsider our presumption that privacy and defamation are separate spheres of law that need to be treated in isolation, with the occasional intersection between the two.
Dr. Randall, quoting from his own comprehensive comparative analysis, said that there has been a universal rejection of ‘actual malice’ rule outside the United States. The ‘actual malice’ rule is an essential element in proving defamation, where the plaintiff must show that the statement was “made with knowledge that it was false or with reckless disregard of whether or not it was false.”
Yet, he was of the view that comparative analysis is important but that care should be taken since one size does not fit all. The law must be used to restore accountability and should act as a check, considering the ongoing 'fake news' crisis in journalism and how digital mass surveillance is being used by governments and corporates across the world. Both these factors, he warned, would play a significant role in the dynamics of future reform.
Peter Downard stated that the proposed reforms would be an interesting experiment since this would be a rethinking of defamation law from the ground up. He was quick to add a caveat that we must understand the plaintiff and defendant’s relationship when looking at defamation in order to have an accessible justice system. We must consider the context of the defamatory speech. While the standard of proof must not be so low that by default everybody would seem to engage in such speech.
Defamation in the internet age raises some very important questions regarding Access to Justice (‘A2J’) and we need to re-think how reputational harm online is linked to reputational harm offline. While reputation can be harmed with falsity, it is equally possible to damage reputation from private and confidential information. We need to reconsider our presumptions on privacy and defamation and realize that they are linked.
Today we face an unprecedented assault of misinformation, fake news and falsities, and law reform needs to tread carefully. While it must balance free speech and privacy interests of individuals, consideration needs to be made towards A2J in the face of the onslaught of high volume, low value privacy cases that threaten to clog down our justice system.
It will be interesting to see how the legislature responds to future reform, especially considering how we have treated privacy and reputation as two separate spheres of law. While we grapple with ‘fake news’ and mass surveillance, we must restore accountability and truth. Not just for the big guys but also for the most vulnerable section online, the kids.
Prasang Shukla is an IPilogue Editor and recently completed his International Business Law LL.M. from Osgoode Hall Law School.