Media And Communications: Risks Of Liability Emerging For Online Platforms In Canada

• Published date: 03 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Mobile & Cable Communications, Class Actions, Libel & Defamation, Advertising, Marketing & Branding, Broadcasting: Film, TV & Radio
• Law Firm: Torys LLP
• Author: Ms Sarah E. Whitmore, Lara Guest and Adrienne Oake

With remote business gaining significant traction in the last few years, many companies have looked to transform and advance their digital strategies, including through online commerce enhancements and digital offerings in the media industry. While new opportunities for industry participants have emerged with the expanding digital reach, new areas of risk are emerging.

Online platforms and Canadian courts

As a constantly evolving centre for communication and expression, the internet continues to pose challenges for the Canadian justice system.

The combination of the wide reach of online platforms to readers across the world, and users' ability to publish content anonymously provides an opportunity for the exchange of ideas to flourish worldwide. At the same time, the risk of potential harms is virtually limitless.

In an attempt to strike the right balance, Canadian courts have grappled with the liability of internet intermediaries for content distributed by third parties on their platforms. Over the past year, several novel claims have raised important questions, and the resulting decisions have begun to shape the law. The trends that have emerged suggest that there may be a greater willingness by Canadian courts and Parliament to regulate online platforms.

This article summarizes the recent evolution of online platform liability in Canadian law. We begin by reviewing the existing case law which, in certain specific circumstances, recognized an online platform's liability for a third party's defamatory content. While the case law continues to evolve, the courts have regularly acknowledged that some degree of liability for online platforms is warranted.

We then turn to recent developments in both case law and proposed legislation that increases the risks for online platforms, not only in defamation but also breach of privacy, hate speech, breach of human rights legislation and breach of contract. Parliament appears to be taking a very different direction than the United States, which provides online platforms with broad-ranging immunity from liability. Section 230 of the U.S. Communications Decency Act (CDA 230) bars online platforms from being considered a "publisher or speaker" of third-party content and establishes that a platform can absolve itself from liability by moderating its content in good faith¹. Canada has no such legislation.

Finally, to address these emerging potential risks, we provide practical strategies to mitigate liability.

Where we are: platforms may be held liable for defamatory comments

Starting in 2005, a series of cases recognized that in certain circumstances online platforms could be liable for defamatory expression posted by third parties. A significant motivator for imposing liability was the threat to reputational interests through anonymous postings left indefinitely in cyberspace. In Carter v. B.C. Federation of Foster Parents Assn., the British Columbia Court of Appeal described the policy rationale for recognizing liability where a defendant fails to remove offensive material in a timely manner as follows:

[I]f defamatory comments are available in cyberspace to harm the reputation of an individual, it seems appropriate that the individual ought to have a remedy. In the instant case, the offending comment remained available on the internet because the defendant respondent did not take effective steps to have the offensive material removed in a timely way².

An Ontario court agreed. In Baglow v. Smith, the Ontario Superior Court found the operators of an online message board could be liable for defamatory comments which had been posted on the message board by a third party. The operators of the message board conceded that they were publishers by disseminating third-party content, but argued they were a "passive instrument" by merely making the comments available. The Court rejected that argument. The operators had notice of the impugned posts but refused to delete them. Furthermore, the posters on the message board were generally anonymous...