Law Commission of Ontario Report on Intermediary Liability for Defamation

The Law Commission of Ontario has published a report on intermediary liability for defamation, recommending changes in the law to maintain a balance between protecting plaintiffs and avoiding a threat to freedom of speech and expression. The report suggests that intermediaries should not be held responsible for identifying defamatory content, but should be encouraged to remove it. The law should be neutral and not curtail freedom of speech, but should impose liability on secondary publishers. The court has the power to determine intention in causing defamation, and intermediaries should act in accordance with codified law like the Copyright Act.

Running head: SUMMARY OF ARTICLE
Summary of Article
Name of the Student
Name of the University
Author Note

1SUMMARY OF ARTICLE
In the modern era of internet, the intermediaries like internet service providers, search
engines, social media organisations and the website hosts can be held responsible for any
defamatory content posted in the internet by the third parties under the law of defamation.
The Law Commission of Ontario in their report published in 2017 has set out some
recommendation requiring some changes in the law of defamation.
Intermediaries possess little knowledge about the legal aspects of defamation and it
consequences. They do not have the competence to identify a statement to be defamatory.
Therefore, they should not be made responsible to act as an arbitrator to consider the fact that
whether a content should be published or removed from the internet. The intermediaries
should be encouraged to remove defamatory contents from the internet. However, the
intermediaries are not given with the power to act as censor, yet they have the capacity to
regulate the contents being published on the internet, as they can act faster than the process
followed by courts in this case. They should maintain a procedure for controlling and
monitoring the complaints received by them for defamation. The law regarding technology
needs to be neutral. It has been observeded that internet users stream violating contents rather
than posting it. In such a case, removal of contents is not possible. In this aspect, the
Australian High Court rejected the regulation on publication of contents in the case of Dow
Jones v Gutnick. It was observed by the Court that specific rules cannot be made to regulate
publication in internet. At the same time, a strict regulation on internet publication can
curtail the freedom of speech of a person. A law on publication can become a threat for the
innocent publication that is not related with causing a defamation. However, this principle
does not remove all the liabilities of intermediaries but it should be regulated in a certain way
to avoid a threat to the freedom of speech and expression. In a case where the primary
publishers are not being able to be identified, the intermediaries are not to be made liable for
a defamatory content. If there is a secondary publisher who is responsible for the content,

2SUMMARY OF ARTICLE
the intermediaries cannot deny to provide any remedy to the plaintiff. Though the UK
Defamation Act, 2013 rejected to hear a case where a primary publisher cannot be held liable
for the act of secondary publisher, the rules were reconstructed in Crookes v Newton. It was
settled that it would provide unnecessary immunity to the secondary publisher. For the
purpose of regulation, a strict statutory reform is needed.
Certain recommendations in this report so as to change the law would help in
providing protection to the plaintiffs. The law should be modified in a way to maintain the
balance to impose liability on the secondary publisher. The publication of secondary
publisher are not adequate to cause defamation to a person as they do not possess the same
amount of knowledge about the perspective for the reason the content was published. This
does not protect the publisher who has intentionally published the content. It is considered
that the primary publisher is responsible for preventing such publication. The intermediaries
should not be responsible for failing or omitting to remove a problematic content. This power
shall make them enable to take down any content regardless of the injury to reputation. The
law of defamation should be able to address the liability of defendant who was not initially
responsible for making such content and failed to remove them. Publishers are required to
hold an adequate understanding about the contents they are publishing. The court has the
power to determine the matter regarding what is intentionally conveyed and resolve it. A
careless publication by a person does not automatically make them a publisher. Although the
person was careless but the test should be based on the facts that he did not take part in
causing injury to reputation intentionally. However, the person can acquire vicarious liability
for such act. A defendant shall not be deemed have an intention in causing a defamation if he
had not control over the conveyed content. It is recommended to codify the obligations of
intermediaries to control the complaints received from third party about a defamatory
content. The common law is not sufficient to regulate the obligations of the intermediaries.

3SUMMARY OF ARTICLE
Therefore, the intermediaries should act in accordance with codified law like the Copyright
Act.