Are we asking too much from defamation law? Reputation systems, ADR, Industry Regulation and other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age: Proposal for Reform – Emily Laidlaw

In an earlier post, Hilary Young and I outlined our proposal to the Law Commission of Ontario (LCO) for reform of intermediary liability and the meaning of publication in defamation law.

I was also commissioned by the LCO to write a paper on dispute resolution in which I sought to answer the following question: given the reputational harms suffered in the digital age, what kinds of dispute resolution mechanisms would improve access to justice and resolution to complainants?

This paper builds on recommendations Hilary and I made concerning intermediary liability, as intermediaries are inextricably linked with questions about how to resolve online defamation disputes. In this post I will briefly summarise my recommendations to the LCO. However, I invite readers to read the full paper and provide feedback either directly to me or the LCO.

In an online context, readers will intuitively know some of the problems with resolving online defamation disputes. I identify the following challenges, among others:

• The “web of connections” online means that information and relationships are disaggregated across different social groups, platforms, locations etc.;
• It is sometimes difficult to identify a wrongdoer or his/her location, or there are multiple wrongdoers/participants;
• Potential defendants are sometimes located out of jurisdiction;
• Online platforms are often based out of jurisdiction;
• Defamation laws and intermediary liability laws differ or conflict between countries, in particular with the United States Communications Act s. 230 and the SPEECH Act;
• Once defamatory content is posted online it is almost impossible to un-ring that bell;
• The above is compounded by the ease, speed and reach of online communications;
• There is a disconnect between courts and the online communities where the defamation was communicated.
• Most online defamation claims are high-volume and low-value, meaning that most claims are not worth litigating given the low potential damages and legal complexity involved.

For online defamation disputes, this creates challenges. Among others things, traditional remedies are less effective to resolve some of these disputes and whatever solution is devised will only solve a portion of the defamation harms online.

The key to resolving some of these problems, in my view, is revisiting the basic question of what complainants want to resolve a defamation dispute and then connecting this with innovations in dispute resolution. Generally speaking, claimants want to restore their reputation. Claimants rarely sue with the primary purpose of money damages. This invites re-imaging of a system of resolution that better meets the goals of complainants.

I recommended to the LCO creation of an online tribunal to resolve defamation disputes as a complement to traditional court actions. For complex claims, courts are the appropriate bodies to be deciding the dispute. For the high-volume, low-value nature of a typical online defamation dispute, an online tribunal would be the better avenue for resolution. The proposed tribunal is modeled on British Columbia’s new Civil Resolution Tribunal, and also influenced by the development of an online court in the United Kingdom (among others).

What is most compelling about the BC and UK models, is that they are focused on delivering a wider scope of resolution, namely helping complainants diagnose a legal problem, avoid disputes, contain them once underway, and facilite a solution. This broad scope of resolution mirrors the features identified in this paper as key for resolving defamation disputes. The features that I conclude are important are:

• Speedy resolution is critical, because information spreads quickly and easily;
• Accessibility of resolution is important, in terms of cost and ease of use of the process;
• Containment and avoidance of disputes are also key. With the risk that online defamation spreads quickly and disputes escalate equally as fast, the facilitation of resolution that arrests further harm and de-escalates is preferable;
• Technical solutions are fundamental to resolving online defamation disputes, and therefore the law is only part of the solution;
• Subject matter expertise of caseworkers, adjudicators and judges is desirable.

There are a variety of reasons why an online tribunal is so compelling. The lack of access to justice for defamation claimants is a societal harm and the consistent message from research and interviews was the need for access to a forum of dispute resolution that was fast and less expensive, which tribunals are in a better position to deliver than courts. An online tribunal offers a greater range of tools to fix a reputational harm than traditional courts and can be specialized in a way that a Canadian court cannot.

In coming to the conclusion that an online tribunal is the best option, I explored a variety of potential regulatory models, both defamation and non-defamation specific. I drew ideas from a variety of industries including domain names, privacy, press, finance and construction, and I considered lessons from recent defamation reform in the United Kingdom.

The paper explores the gamut of streamlined court processes, defamation regulatory bodies and non-defamation industry regulators (including co and self-regulatory bodies). I examined online dispute resolution, including techno-legal solutions, online courts or tribunals, company dispute systems, and government mandated alternative dispute resolution. I also examined the role of the intermediary in providing resolution to defamation disputes and how that can be conceptualized and incentivized through legislation.

We are in early days of sketching the features of the tribunal. My paper more broadly focuses on the kinds of dispute resolution frameworks that would improve access to justice and recommended an online tribunal as the best candidate. However, the devil is in the details and some of the points I explored include, whether it should be mandatory or voluntary, public or private, permit legal representation or have the power to award damages. In my view, however, these are just “teething troubles”, to use the language of Lord Briggs in making his recommendation for an online court. There has been significant development in access to dispute resolution to resolve e-commerce disputes and it is time for something similar to resolve content disputes.

Emily Laidlaw University of Calgary, Faculty of Law