How Technology Can Outpace Law Reform

• Published date: 31 March 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Technology, IT and Internet, Arbitration & Dispute Resolution, Libel & Defamation, New Technology
• Law Firm: Rogers Partners LLP
• Author: Ms Dana L. Eichler and Emily Vereshchak

An attack on an individual's character is not a new concept. People have been defaming and insulting each other for centuries. Obviously, however, the manner and nature in which defamatory statements and comments are made, has developed along with society.

A press conference on the courthouse steps gone sour was once primarily restricted to those who were actually present to hear it.¹ A controversial article in a printed newspaper or magazine had limits in the number of readers and was constricted by geography.

Over the internet, publications are instant, and far-reaching. Online newspapers, social media and blogs create a place for individuals to exercise their Charter rights and express their comments and opinions about any topic (or any person).

The common law develops at a slow pace and the Courts have long been looking for further legislative guidance on these new social circumstances. Defamation claims in the internet age have forced the Courts to adapt the common law in an environment that is subject to constant change. However, they cannot do this alone.

At present, the Libel and Slander Act² holds many values that were developed in the 19^th century. What is the Ontario Legislature to do about encouraging the right of freedom of expression in the face of vicious online publications, hateful campaigns and cancel culture?

Step in the Law Commission of Ontario ("LCO"). The LCO is a partnership created by the Ontario Ministry of the Attorney General, the Law Foundation of Ontario, the Law Society of Ontario, Osgoode Hall Law School and the Law Deans of Ontario.

The LCO strives to provide independent, balanced and authoritative advice on some of Ontario's most complex and far-reaching legal policy issues. Their reports are intended to provide practical and problem-solving recommendations, informed by a comprehensive consultation process that engages a broad range of individual experts and institutions. The LCO's reports have been considered, and often times their recommendations implemented, in legislative, regulatory and policy amendments.

The LCO stepped up to the plate, and released a report in March of 2020 entitled: Defamation Law in the Internet Age. The report is the result of an extensive and detailed four-year project, and provides recommendations on how to best reform defamation law in response to social media and the internet.

The LCO report and details on the consultation process from 2016 to 2020 can be found here.

It has been a year since the release of the LCO's report, and what a year it has been. Indeed, the term "cancel culture" has become a part of our vocabulary. So, has anything changed? What are the courts doing? What is the legislature doing? How might these recommendations impact claims?

The LCO's Recommendations

(a) A New Defamation Act

In their report, the LCO makes 39 recommendations in an effort to promote access to justice and to develop a regime that is relevant to defamation claims in the internet age.

One of the LCO's fundamental recommendations is that the current Libel and Slander Act be repealed and replaced with a new Defamation Act, which would establish the legal framework for resolving defamation complaints in Ontario. The new Defamation Act would also provide for a single tort of defamation, abolishing the distinction between libel (false statements that are published in writing or print) and slander (false statements that are spoken or by way of a gesture).

Eliminating the distinction between these categories of defamation makes sense. The LCO suggests that the distinction is outdated in our technological era and unnecessarily complicates the legal analysis.

In addition, the LCO believes the statutory meaning of "publication" must also be revised. At present, section 2 of the Libel and Slander Act states that defamatory words in a newspaper or in a broadcast shall be deemed to be "published" and constitute "libel". This definition maintains a difference between libel and slander, and also fails to consider the...