The trouble with USMCA’s defamation provisions

By Staff

By signing on to the United States-Mexico-Canada Agreement (USMCA), the Liberal government agreed to significantly alter the existing common law of defamation, Toronto lawyer and mediator Howard Winkler writes in Law Times.

The winners are companies like Google and Facebook, which facilitate online communication, says Winkler, principal and founder of Winkler Dispute Resolution.

“The loser is the common law protection of reputation and victims of anonymous false and defamatory online statements, such as untraceable comments on rate-my-professional types of sites or Google business reviews,” he writes. “This should be of particular concern to all Ontario lawyers whose reputations are so important and so easily destroyed, as well as to their clients, whose livelihood often depends on their online presence.”

Winkler says the ability to protect one’s reputation is critical, citing a landmark Supreme Court of Canada case, which stated, “to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws.”

For years, Canadian courts and provincial lawmakers have struggled with the sometimes competing interests between the constitutional right to freedom of expression and the right to protect one’s reputation, he writes.

“This fine balance will be fundamentally altered due to a clause in the USMCA,” Winkler says. “In plain language, this provision will provide absolute immunity to content providers no matter what the nature of the content is that they facilitate.”

“No Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information,” says paragraph two of clause 19.17 of the USMCA.

While some claim this as a victory for freedom of expression, Winkler argues it’s more like a “nail in the coffin” of people's rights to safeguard their reputation from the explosion of anonymous, false and defamatory content that appears online and served up by search engines.

“One of the greatest challenges to business and individuals today is dealing with the proliferation of fake, false and defamatory content on the internet,” he writes. “Anyone with access to a public computer terminal can, with the push of a keystroke, anonymously, immediately and permanently damage the hard-earned reputation of a business or individual.”

Winkler says it’s not uncommon for anonymous individuals to post fake, false or defamatory reviews of a business with the help of a public computer in a library or from a jurisdiction outside the reach of Canadian courts, including the U.S.

“In the U.S., under the provisions of the Communications Decency Act, ‘no provider ... of an interactive computer service shall be treated as the publisher ... of any information provided by another information content provider,’” he writes. “In other words, the law in the U.S. provides absolute immunity to providers such as Google, Facebook and Twitter even when they knowingly provide a vehicle for the publication of demonstrably anonymous, false and defamatory content.”

By contrast, Winkler says other common law countries like Australia continue to lead the way when it comes to online defamation and the liability of secondary publishers.

“In the [case], the Supreme Court of South Australia ruled that once on notice, Google must either remove the material or face liability as a secondary publisher,” he writes.

In the matter, the internet giant refused to remove search results that suggested a doctor was a stalker, which the court found were defamatory, Winkler says.

"The court awarded general damages against Google in the amount of AUD$115,000 (approximately CDN$106,000) for loss of reputation and hurt feelings. The award was upheld on appeal," he adds.

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

The common law approach of imposing some responsibility on service providers to exercise control over the content they facilitate make sense and without the USMCA, there’s no reason to think Ontario courts wouldn’t follow the same principles, Winkler writes.

“Finally, the law of defamation is a provincial power. While the enactment of paragraph 2 of clause 19.17 of the USMCA may be within federal powers as it relates to intellectual property, it is arguable that only the provinces can enact legislation affecting the law of defamation,” he says.

Winkler advises provincial legislators and Ontario courts to pay close attention to the USMCA provision and ensure they uphold protection for reputational damage.

“The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump,” he writes. “While Trudeau may have intentionally or unwittingly given Google an early holiday gift, one can only hope that, with the passage of time, it amounts to nothing more than a lump of coal.”

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