Many think Canadian courts award relatively modest damage awards in tort cases, especially when compared to our U.S. neighbours. However, a recent case, Rook v Halcrow, shows that Canadian courts will award significant damages — in that case, the defendant acted with malice when undertaking a protracted online campaign to defame a former lover on social media and the court awarded damages in excess of $230,000. To read more about the case, see our full article here.
While other jurisdictions have legislated protections for platforms, in Canada we see an increasing willingness of courts to hold intermediaries responsible, whether by damages or by injunction, for the posts of their users. The United States’ Communications Decency Act, for example, insulates interactive computer services from liability as a publisher, except in very limited circumstances. When combined with robust First Amendment protections and a strong free speech culture, online platforms and courts in the US take a very hands-off approach to content moderation (and this has become somewhat controversial and the target of critique from legislators and pundits). In the United Kingdom, the Defamation Act, 2013, provides that an online operator has a defence against defamation by showing that the operator was not the person who posted the statement. This UK defence is defeated if the claimant can demonstrate that the operator operated with malice, or in situations where the claimant couldn’t identify the poster and, after notice from the claimant, the operator failed to respond to the claimant’s notice.
If only Canada had such clear laws. Instead, this issue remains largely unlegislated and left to the common law, which holds that a person will not be responsible, as a publisher, if the person’s sole participation in the publication of the defamatory material is merely their “innocent” involvement in the purely administrative, mechanical publication. In practice, this defence is only available where (1) the operator has no knowledge of the libel, (2) the operator ought not have been aware of the alleged libel, and (3) the operator committed no negligence in failing to find out about the libel (Crookes v. Newton). In BC, for example, it was held that a website operator may be an innocent disseminator where it has merely posted a website link without knowledge that a defamatory statement existed there.
Thus, intermediaries in Canada must consider and implement clear policies both on how to respond to takedown requests by users who claim to have been defamed, and on how to ensure that they remain mere “innocent administrators” and not tread into culpability. This also involves careful consideration of how the operator’s platform (and, to what degree, the operator) promotes, elevates or pushes content on its users. Unfortunately, intermediaries often do not have the requisite information to undertake any analysis on whether a given post is defamatory; not to mention the fact that such companies generally do not want to be in the business of censoring content. Therefore, prior to being made aware of a court order or injunction regarding any defamatory posts, intermediaries are put in the difficult position of having to respond to potentially unsubstantiated take down requests from users who claim to have been defamed on their platforms.
We note in the Rook case that the court granted an injunction that restrains the defendant and other persons with knowledge of the order, wherever they are located in the world, from publishing any of the comments contained in the schedule attached to the judgment. Canadian courts (the Equustek case) consider themselves to have jurisdiction to grant worldwide injunctions when necessary to ensure injunctive effectiveness, because the internet’s natural habitat has no borders and is global. We note that a non-party (like an online operator) can be held in contempt for aiding and abetting a person violating an injunction. While there is certainly no positive duty for intermediaries to make themselves aware of injunctions impacting a platform’s content, they ought to take this into account when drafting their policies.
While spurned ex-lovers should certainly take note of the Rook case and consider their online behaviours carefully, Canada’s lack of legislation preventing intermediaries for being liable for that same content also requires some thought. As online platforms continue to compete for the attention of their users in the increasingly crowded marketplace of content, they must not assume that they can always hide behind intermediary immunity. This may be true as politicians and pundits attack shields that have formed the basis of the internet revolution in economies like the United States, but it is certainly true in Canada where there is no such immunity. Instead, online service providers must develop clear policies and processes that serve to best insulate them from increasing liability by ensuring that they remain mere innocent publishers of third-party content.