Defamation: Recommendations for Reform.
Defamation law protects reputation from harm caused by false words. The law attempts to balance two conflicting yet fundamental values: protection of reputation and freedom of expression. As the law stands, defamation has two forms: libel (written words) and slander (spoken words). The defamatory statement must have been heard or read by persons other than you.
Typically, defamation complaints were focused on newspaper articles, books, magazines, and television broadcasts, however, in the age of social media and the internet, there is no practical remedy for Ontarians victimized by online defamation.
For a defamation case, a defamed person must prove:
- The words were defamatory;
- The words referred to the person complaining about those words; and
- The words were published (written or said to a person other than the person who has been defamed)
If you can prove these three elements, damages are usually presumed and the defendant must then prove a defence (such as, the words were truthful) to avoid liability.
Recommendations for changes to the law of defamation
The Law Commission of Ontario, for the last four years, conducted extensive research and consultations on how best to reform defamation law in Canada. They released a final report in March, 2020 that makes 39 recommendations to reform Ontario’s defamation laws to promote access to justice, and involving internet intermediaries in addressing defamation online.
The key themes and recommendations for reform include:
- Repealing the existing Libel and Slander Act and replacing it with a new Defamation Act;
- Internet intermediary platforms hosting third party content (such as Twitter, Facebook and Instagram) should have new legal responsibilities that facilitate the provisions of notices of complaints and requiring takedown of the content where the poster does not respond to the notice in 2 days;
- Internet platforms that do not fulfil these duties should be liable for court fines;
- Giving courts’ authority to order interlocutory court orders to take down or de-index defamatory contact;
- Introducing a two-year limitation period for all defamation claims; and
- Recommending the establishment of an online dispute resolution tribunal, which would provide an inexpensive and quick forum for resolving complaints as opposed to the alternative and expensive protracted court proceedings.
These recommendations are just that, it is up to the Ontario government to implement them, ignore them or soften them. Right now, there is no practical remedy for Ontarians that are victimized by online personal attacks. The law requires change to help better protect a persons reputation in the age of the internet and social media.
This is a brief outline about defamation and should not be taken as legal advice. Defamation law is a fairly specialized and complicated legal field. If you feel you have been defamed or you are accused of defamation, you should contact a lawyer with expertise in this area.
Alexandra Paula and Josh Valler