Michael Ford (post until Oct. 31/19)
Defamation

Case may clarify how platforms treat defamatory content: Winkler

An ongoing lawsuit in British Columbia could help define what responsibility online platforms have once they are notified that content on their site is defamatory, Toronto lawyer and mediator Howard Winkler says.

The matter involves a businessman who is suing Twitter over its “role in policing defamatory or hateful speech” on the website, reports The Globe and Mail.

“I hope that the plaintiff sees this action through to the end because it involves a really important legal principle in Canada that needs to be clarified,” says Winkler, principal and founder of Winkler Dispute Resolution.

He says defamatory postings on platforms such as Facebook and Twitter have been a serious problem for individuals and businesses for a long time.

“The liability of websites for content posted by others once the host has notice of the defamatory nature of the content has never been tested in Canadian courts,” Winkler says, “Fighting the Googles, Facebooks and Twitters of the world would require enormous resources that most individuals and businesses don’t have.”

Winkler concedes it would be “unfair and unrealistic” to think that Facebook or Twitter could monitor all of the content on their sites since new material is posted all the time.

“In fact, traditional law provides them with immunity in those circumstances, through a defence called innocent dissemination,” he explains.

However, once these websites are made aware of content that is defamatory, Winkler says it is a completely different situation.

"In Australia, another common law jurisdiction, they become liable for the content based on traditional principles, which should equally apply in Canada," he tells AdvocateDaily.com.

The Globe article states, “Twitter and other social-media companies such as Facebook view themselves as platforms,” and not publishers, and therefore can’t be held responsible for content.

But Winkler says that argument was rejected by the Supreme Court of South Australia.

In its judgment, the court ruled, “The ignorant should not be allowed to wreck reputations with impunity. Once knowledge ... of the words is proved, the secondary publisher who persists in the dissemination of the material carries the risk of the ultimate findings as to their meaning.”

Winkler says that is consistent with traditional principles in the law, giving the example of a newspaper being held liable if an article it publishes includes defamatory quotes.

“Why wouldn’t the same principles apply to Google or Facebook, which are today’s facilitators of news and information?” he asks. “It is an important principle because people in Canada are, at the moment, helpless in relation to the defamatory and fake content that’s posted about them when the author is anonymous, out of the reach of Canadian courts or impecunious. To date, the response of most large internet providers is to refuse to take any action whatsoever."

Winkler says that creators of this damaging material often use aliases that don’t identify the author of the content, and they post the material from a public computer, such as those found in a library or internet café, so that their identity is untraceable.

“If we can’t impose some kind of liability or control on entities like Facebook and Twitter, people are left with no recourse, even though the content can be immediately and permanently damaging to one’s reputation,” he says.

Winkler says there are two things that could impact the lawsuit, the first, an obstacle to plaintiffs, being “a little-discussed paragraph” in the yet-to-be-ratified Canada-United States-Mexico Agreement.

“If you read the agreement, you will see that paragraph two of clause 19.17 essentially provides absolute immunity for internet content providers, paralleling an existing provision in the Communications Decency Act in the United States,” he says.

When the agreement was adopted in principle by the three countries, Winkler says there was “very little discussion about this paragraph’s inclusion, giving entities like Google, Facebook and Twitter absolute immunity in relation to the content that they post.”

The second factor, this time favouring a plaintiff, is legislative reform, he says, noting that some U.S. Democrats have suggested they would consider amending the Communications Decency Act to eliminate this immunity.

Here in Canada, some members of the federal government have suggested that online platforms should be regulated, Winkler says, even though to expose the platforms to liability would be contrary to the proposed trade agreement.

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