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Blog May 24, 2018

Networking the Law of Defamation

Even as technology transforms the world of communication – as it has over the course of history – defamation law remains strangely impervious to change. True enough, the law has evolved over time – indeed centuries – but nonetheless seems as beholden as ever to an archaic muddle of backwater rules and concepts. It is especially disappointing that the law essentially worsened after the Supreme Court of Canada considered the status of defamation under s.2(b) of the Charter of Rights and Freedoms, which guarantees expressive freedom (Church of Scientology v. Hill). Doctrinal corrections were slow and then served mostly to bring Canada abreast of jurisprudential developments in Commonwealth countries without constitutional rights (WIC Radio v. Simpson, [2008]; Grant v. Torstar Corp., [2009]).

Whether, when or just how internet technology will force a reconception of defamation law remains to be seen. On May 3, 2018, the Law Commission of Ontario (co-chaired by Professor Hilary Young and myself) hosted a conference in Toronto on this issue (“Defamation Law and the Internet: Where do we go from here?”). The conference was part of a major LCO project to consider and recommend law reform specific to internet defamation (Defamation Law in the Internet Age). The project is one of the first to brave this task; though much energy has been expended on libel reform in recent years, little has been dedicated to the daunting problem of online defamation.

The internet is a juggernaut – a virtual space where any and all can send and post material almost at will, and in doing so deploy any number of sites and mechanisms to leverage internet voice. Reputation and the distinctive online damage it may sustain – by virtue of the speed, scope, impact and longevity of the internet’s reach – are caught in a vortex of freedom that is spiralling at all time and places and in all directions.

Online reputational harm poses regulatory challenges that are complex and intersectional; on any view, they defy easy – or any – clear resolution. What follows are some reflections, basic in nature, on the questions that must be confronted in imagining how the law can or should respond.  

To begin, it is not self-evident how any reform project should be conceptualized. One approach is to return to the foundations, re-configure existing doctrine, and then apply a modernized conception of defamation to the internet. A more ambitious alternative would essentially bypass the status quo and focus primary attention on the internet, re-styling doctrine to accommodate reputational harm in that setting. If the basics of defamation law are harmonized along the way, so much the better.

Though it might appear backward to center on the internet, rather than begin by repairing baseline defamation law, there is much to be said for reverse engineering. Much of current doctrine does not translate to the networked world, and online technology challenges many of the assumptions and expectations of current law. An approach to reform that treats the status quo as its starting point is less likely to appreciate or achieve transformative change.   

Addressing a notable gap in Canadian defamation law is a second priority for any reform project: the lack of a social theory of defamation. Missing to date is an account of why the law protects reputation at all, and why reputation trumps expressive freedom in the circumstances prescribed by current doctrine. It may be glaringly obvious that the law must defend the integrity of reputation, and continue to do so on the internet. Even so, hortatory appeals to the innate dignity of individuals is not enough, especially in light of internet communication and the constitutional status of expressive freedom. The law of defamation is sorely in need of theorization to ground, legitimize, and direct its doctrinal solutions.

Some years ago, Robert Post proposed an influential theory of defamation law. Specifically, he suggested that defamation law protects the social bonds of community identity and membership through rules of civility that target transgressive reputational harm. In other words, defamation law serves a valid community interest in protecting the integrity of each and every member’s reputation. As he put it, defamation’s rules of civility define and maintain the contours of a democratic community’s “social constitution.” In his view, that is a public good separate from the protection of purely private interests, and an important objective on its own. (“The Social Foundations of Defamation Law: Reputation and the Constitution”, 74 Cal. L. Rev. 691 (1986)).

Defamation law should be grounded in a pro-social rationale that stands apart from a bare preference, on the law’s part, to protect the dignity of one person’s reputation at the expense of another’s expressive freedom. If a concept of civility is one way to describe that broader purpose, certain cautionaries are nonetheless in order. First, civility is an indeterminate and subjective concept which is too often invoked in recent discourse to justify limits on expression that is offensive but only tangentially harmful. Second, any theory of defamation grounded in a social concept of civility must be contextualized to the internet, where the standards of discourse are highly variable, substantially relaxed, and quite often not all that civil. In addition, there are other reasons to question whether and how current doctrine works on the internet.

First, the protection of reputation has its deepest roots in the goal of preventing breaches of the peace. Centuries distant from those origins, it is easy to see that reputation’s properties are radically different on the internet. How an individual is known and esteemed, or not, is no longer contained within the precincts of identified geographic boundaries – one’s home, work, family, neighbourhood, and community – as tort doctrine conventionally assumed. On the internet, individuals and their reputations are unavoidably and often globally exposed: if it ever was, reputation is not now a static, choate, enduring and reliable attribute of personhood. Uprooted from its place in local community, reputation in a connected world is fluid, dynamic, ephemeral, and – importantly – interactive. Reputational interests on the internet are simply too unstable to be regulated by conventional doctrine.  

Not only that, the content of defamation is more problematic than ever. The true/false dichotomy and line between facts and “fair” or “honest” comment are the highly contested and legendary trigger points of defamation law. The internet places this age-old issue on steroids. In the absence of standards or means of accountability, its users are well aware that much of internet content is inherently unreliable. Yet the essence of defamation is the damage to reputation that occurs when falsehood spreads and is sufficiently credible to lower an individual’s reputation. In many instances, it will be unclear whether online information is “false” and whether it has in fact caused reputational harm. What surfaces notably in that discussion is the role of harm in assigning responsibility, and whether defamation’s status as a strict liability tort is fair or sustainable going forward.

A further variable that unsettles the assumptions and expectations of defamation law concerns the idea of community. The law of defamation is grounded in the concept of a community, where one’s reputation is enjoyed, that is relatively discrete and identifiable. Needless to say, diversity and dramatic changes in community demographics demonstrated the limits of this concept long before the internet. The issue is magnified in the connected world, which comprises a macro community of intersecting, disparate and wildly divergent participants, many of who may care little for the protection of reputation. In addition are any number of micro communities where the online culture is more or less tolerant of unfettered expression, including defamatory content. In these circumstances, how defamation law can plausibly define community – to determine whether reputation has been affected by defamatory material – presents inordinately difficult questions.

These dynamics confirm the obvious, that the internet is a frontier that calls for a major re-think of defamation law’s foundations and objectives. That is not all, either, because these observations do not account for other difficult questions about the responsibility of intermediaries (such as ISPs); protocols for notice-and-takedown; jurisdiction over lawsuits; and anonymous defamatory content, among others. 

As well, the internet offers alternatives to lawsuits, and this may also argue against a generous conception of liability for online defamation.  It is the tort action’s purpose to supply a remedy to those who are wronged and have no way to mitigate or counter defamatory falsehood. What a difference technology makes: platforms for counter speech and other forms of self help (i.e., reputation management; take-downs) are readily available online. While it would be unwise to overstate the point – as questions of access, power and relative voice surface online as elsewhere – the internet, importantly, is multi-directional. Though it might not eliminate reputational harm, internet counter measures can, in principle, substantially mitigate the wrong in some or many cases.

A final consideration is manageability and whether a concept of internet defamation can deliver on its promise to enforce the law. At the least, defamation’s antiquated rules are ill equipped to answer the difficult questions arising from online reputational harm. To maintain legitimacy and credibility, a law of internet defamation will have to choose when and how to intervene. This will clearly require the assumptions and expectations of defamation law to be recalibrated, realistically, to the world of global online communication. In the end, a model for online defamation law might not bear great resemblance to the status quo.

If the questions are imponderable and the challenge formidable, the need for a response to online reputational harm cannot be ignored. The key to any initiative for internet defamation is a well-considered concept of responsibility: of who is accountable for defamatory content, in what circumstances, and to what extent. In undertaking those issues the LCO project is a timely initiative and crucible for testing the limits of defamation law on the internet.