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.
The importance of the right to protect one’s reputation cannot be understated. As the Supreme Court of Canada noted in Hill v. Scientology, “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,” said the ruling.
For generations, common law countries, Canadian courts and provincial legislators have grappled with the fine balance between the competing interests of the constitutionally protected right to freedom of expression and the quasi-constitutional right to the protection of one’s reputation.
This fine balance will be fundamentally altered due to a clause in the USMCA. 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 clause 19.17.
Some say this provision is a victory for freedom of expression. I disagree. I believe that this is one more nail in the coffin of the right to protect one’s reputation from the proliferation of anonymous, false and defamatory content published on the internet and made readily available by search engines such as Google.
One of the greatest challenges to business and individuals today is dealing with the proliferation of fake, false and defamatory content on the internet. 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.
Consider this not uncommon occurrence: With the encouragement of the business review facility provided by Google, individuals with anonymity can post a fake, false and defamatory review of a business or its services. Anonymity can be achieved through the use of a fake name from a public terminal, such as at a public library or from a jurisdiction outside the reach of Canadian courts. This includes, by the way, the United States.
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.” 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.
In contrast to the proposed USMCA provision, countries such as Australia are leading the way among common-law jurisdictions in imposing liability on service providers as secondary publishers of defamatory material once given notice of the defamatory nature of the content they are publishing.
In the case of Duffy v. Google  SASCFC 130, the Supreme Court of South Australia ruled that, once on notice, Google must either remove the material or face liability as a secondary publisher. In Duffy, snippets contained in search results of Dr. Janice Duffy’s name suggested that she was a stalker, which the court found to be defamatory. Duffy complained to Google, but they refused to remove the material. The court awarded general damages against Google in the amount of AUD$115,000 (approximately $106,000) for loss of reputation and hurt feelings. The award was upheld on appeal.
“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.
In my view, the common law approach makes perfect sense and imposes an appropriate degree of responsibility on providers such as Google, once put on notice, to exercise some control over the content they encourage and facilitate.
There is no reason to believe, absent the USMCA, that Ontario courts would not follow the same common law principles.
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.
The provinces should take heed and not be unwilling participants in such an ill-conceived provision. It is ultimately up to our provincial legislators and courts to modify the fine balance between freedom of expression and the protection of one’s reputation. The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump.
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.
Howard Winkler is a Toronto lawyer and mediator who has practised the law of defamation for more than 30 years on behalf of media, plaintiffs and defendants.