Submission to the Office of the Privacy Commission of Canada Regarding its Project on Online Reputation

Law Commission of Ontario

August 2016

Note: This submission was contributed by the author(s) to the Office of the Privacy Commissioner of Canada’s Consultation on Online Reputation.

Disclaimer: The opinions expressed in this document are those of the author(s) and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada.

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The Law Commission of Ontario has read with interest the Office of the Privacy Commissioner of Canada’s discussion paper, Online Reputation: What Are They Saying About Me? Several of the issues being explored in the OPC project are similar to those in the LCO’s current project, Defamation in the Internet Age. In particular, both projects consider possible legal responses to the problem of online reputational harm while taking into account the Charter’s protection of freedom of expression.

The LCO has not yet held consultations in its project and cannot offer responses to the specific questions set out in the OPC’s Discussion Paper. However, we submit this brief summary of our project so that the OPC and LCO can be aware of and benefit from each other’s work.

About the Law Commission of Ontario

The Law Commission of Ontario was launched in September 2007. It was created by an Agreement among the Law Foundation of Ontario, the Ontario Ministry of the Attorney General, Osgoode Hall Law School and the Law Society of Upper Canada, all of whom provide funding for the LCO, and the Ontario law deans and with additional support from York University. The LCO operates independently of government.

The LCO’s mission is to recommend law reform measures to enhance the legal system, improve the administration of justice, consider the use of technology to enhance access to justice and stimulate critical legal debate about the law.

The LCO has committed to consult broadly with both academics and experts in the field and those directly affected by law reform issues. Its approach to law reform is pragmatic, innovative and multi-disciplinary.

Scope of LCO’s Project, Defamation in the Internet Age

Defamation law is a branch of tort law that attempts to protect a claimant’s reputation from harm caused by false statements. The law seeks to strike a balance between two underlying principles: protection of reputation and freedom of expression. The core elements of defamation law were established centuries ago and there is widespread consensus that the law should be reformed to better reflect modern societal values and technological advancements.

One catalyst for reform has been the constitutional enshrinement of freedom of expression in the Canadian Charter of Rights and Freedoms. Over the past few decades, incremental adjustments have been made to defamation doctrine with the effect of giving increased weight to freedom of expression. The LCO will consider whether these developments have gone far enough (or, alternatively, too far) in protecting freedom of expression given the countervailing interest in protection of reputation and taking into account the values underpinning both.

Another catalyst for reform is the emergence of the internet. The internet represents a technological and social revolution with far-reaching implications for human communications generally, including the use of law to regulate reputational harm. Of course, the nature of internet speech will vary significantly with the software or online platform through which it is communicated. This project considers how the technology of the internet and its various platforms and programs impact privacy and reputation and how effectively defamation law operates in this new environment.

The LCO is examining the role of defamation law in the broader context as one of many tools for protecting reputational interests. There are numerous forms of offensive internet speech that the law attempts to regulate in a variety of ways, including cyberbullying, hate speech, breach of privacy, online harassment and the right to be forgotten. These all share some similarities with defamation and may offer relevant analogies and possible lessons for the reform of defamation law.

In particular, claims involving online disclosure of private information are conceptually close to online defamation claims. Both claims may involve a similar balancing between reputation and/or privacy interests and freedom of expression. Both may be pleaded in relation to the same facts. Both may result in similar reputational harm notwithstanding that the private information disclosed may be true while the defamatory statement is false. Therefore, although defamation law is traditionally concerned with false speech, in this project we will expand our analysis to examine related privacy claims as we consider necessary.

A more detailed summary of our project scope is posted at our website.

Future Consultations Process

The LCO has completed the scoping phase of our project. We are currently drafting a consultation paper that we expect to be released in early 2017 and which will lead us into several months of public consultations.

The issues in the project are both multidisciplinary and multijurisdictional. Research and consultations from several other fields and jurisdictions will be necessary to situate our reform work within the development of the law generally. The LCO will consult with a wide range of stakeholder groups including the following:

• complainants who have experienced first-hand the “sting” of defamation
• traditional and “new” media including individuals who blog in the public interest even where they are not associated with established news organizations.
• defamation lawyers acting for complainants and defendants
• government representatives
• members of the judiciary
• internet intermediaries such as internet service providers (ISPs), search engines, web hosts, social media sites and so on.
• academic experts in defamation law, internet regulation, social scientists working in the areas of reputation and privacy in the internet age and related fields
• advocacy organizations interested in Charter rights, law and technology or media interests
• young people who use social media

We will also shortly be releasing a formal Call for Research Papers which invites proposals for research projects on a series of suggested topics. We will be contracting for a number of research papers although we do not yet know how many.

We look forward to being in contact with you on two very interesting projects.

Sue Gratton
Project Head
sgratton@lco-cdo.org