Not so long ago, the mass communication of information was the domain of “trusted” media who, with the aid of writers, fact checkers, editors and publishers/broadcasters had a monopoly on distribution channels. With the advent of the Internet, and in particular with the creation of platforms like Google, Facebook and Twitter, anyone with a computer now has a voice which can be heard worldwide.
This allowed silenced voices to be heard, which was very much in the public interest, but it also facilitated anonymous malicious speech which causes immediate and devastating harm. This harm is inadequately addressed by our current litigation system which is too slow and expensive to provide meaningful mitigation of the harm done.
Much has been done to protect public interest speech, like in Canada the judicial adoption of the new defence of responsible communication and the introduction of anti-SLAPP legislation. However, little has been done to address the harm caused by the malicious and defamatory use of platforms like Google, Facebook and Twitter.
Australia, by contrast, has been proactive. There, courts and legislators are leading the way in protecting against the harm caused by low value defamatory speech on the Internet.
Recent Australian court decisions imposing liability on Google and Facebook for the content they facilitate shows how online defamatory content can be controlled. Australian courts have gone so far as, and perhaps too far in, imposing liability on account owners for the defamatory comments posted by others. Early in September, Australia’s high court ruled that online publishers using the platforms of Google and Facebook were legally responsible for the comments added to their posts by third parties, even if the stories themselves were factual and accurate.
The positive impact of all of this has been to force and coerce Google and Facebook to modify their platforms to better protect the reputations of the innocent.
After that ruling, American-based CNN asked Facebook to craft a blanket disable feature so that the news organization could avoid any legal risk. Facebook refused. CNN responded by disabling its Facebook pages in Australia. Facebook caved and gave in to CNN’s demands for a blanket disable feature in that country. The Toronto Star also recently disabled comments on its articles posted to Facebook to protect their journalists from abuse.
Australia passed legislation that forced online platforms to pay for news content they use. Google threatened to leave Australia. When that failed to have any effect, they relented and entered negotiations for the payment of royalties for their use of others’ content. Following that lead, trusted media in Canada such as the Toronto Star and The Globe and Mail have now negotiated their own compensation packages for the use of their content on Facebook’s platform.
Also in Australia, Facebook, Google and Twitter established a committee with independent oversight to combat online misinformation — but only after the government threatened legislation to achieve that goal.
In response to the legal developments in Australia, a Facebook spokesperson was recently quoted as saying “Australian defamation laws need to be reformed.”
Facebook has it quite backwards. Instead, it is Facebook, and other media platforms that can and should reform themselves to prevent the harm their platforms are causing.
Australia’s proactive efforts — by way of legislation or the threat of legislation — and the application of traditional common law principles by their courts, is forcing positive change among platforms such as Google and Facebook.
The question is: Why is the rest of the world not following Australia’s lead?
There is a global acknowledgment of the problems caused by the current functionality of Facebook, Google and Twitter.
Both the Republicans and Democrats in the U.S. have talked about repealing or modifying the blanket statutory immunity provided to website operators, but no action has been taken. In Canada, the Trudeau government has threatened to control media platforms, but they’ve really done nothing of substance to deliver on that.
In Ontario, in March of 2020, the Law Commission of Ontario delivered a Final report on Defamation Law in the Internet Age which contained many uncontroversial and helpful recommendations to deal with the harm caused by the Internet, yet the Ford government has failed to act on any of the recommendations. One of the most useful recommendations was the adoption of a notice and take down provision which would quickly rid the Internet of harmful speech which the original poster is not prepared to defend. At a minimum, this recommendation should be immediately implemented.
And to be clear, free speech is not the issue here.
What we’re dealing with in most of these cases is low-value speech. It is either misinformation or anonymous defamatory content, which pales in importance to the right to protect one’s reputation.
I hope Canada and Ontario join Australia in efforts to force online platforms to take responsibility for the content on their sites. After all, much of the world relies on Google and Facebook for the dissemination of information. Because of that, they must be held to account for the defamatory and harmful comments that their sites allow users to freely post.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca) a division of LexisNexis Canada.
About the author
Howard Winkler, the founder of Winkler Dispute Resolution, is a senior Toronto mediator and litigator with more than 33 years of problem-solving experience. He specializes in defamation law and commercial litigation.
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