A Canadian law firm is trying to file a class action lawsuit against Facebook. They say Facebook isn’t doing enough to guard against defamation.
On the surface, this is one of those lawsuits you’d think would pretty much get tossed out of court immediately. A law firm is trying to file a class action lawsuit against Facebook for not policing its content with respect to defamation. Especially for American users, Section 230 and right to free speech almost immediately comes to mind when it comes to holding platforms liable for the actions of their users. Here’s the little twist that could possibly throw a wrench into this thinking: it’s a Canadian law firm trying to file it in Canada. From the Montreal Gazette:
A Montreal law firm is seeking a class-action suit against Facebook Inc. for permitting anonymous people to publicly denounce so-called sexual predators.
Calex Légal filed a petition Wednesday seeking a judge’s authorization for a class-action lawsuit against the social media giant.
The suit would seek damages for Montreal residents or those who have business addresses in Montreal, and whose names were published on the Facebook pages: “dis son nom” and “victims voices” and any other page that allows for anonymous people to publish allegations of sexual harassment or assault. It also seeks damages for any allegations published on Instagram, which is owned by Facebook.
In a news release, the firm wrote that the suit does not seek to condemn victims of sexual violence and those who denounce their aggressors using legal means. Instead, it seeks to make actors like Facebook responsible when there is illicit and defamatory content published to its site by anonymous users.
For those who are familiar with Canadian defamation laws, defamation is just something you don’t mess around with. As a general rule, if a defamation complaint is filed, you pretty much lose the case assuming you are the publisher. This is thanks to Canada’s notorious status of having unreformed defamation laws. Lawmakers have been extremely reluctant to even touch this sensitive area, so there hasn’t been much in the way of changes in the last while from the lawmakers standpoint.
Of course, there are details about the lawsuit that could shift what laws do or do not apply here.
There is one case to note that might offer some insight into where such a case could go. That is, of course, the Wayne Crookes case. In 2007, a court ruled that Crookes needed to show that the alleged defamation took place in Canada. The defendant in question at the time was Yahoo! (not Yahoo! Canada). Yahoo! did not have offices in Canada at the time, therefore, identifying jurisdiction became problematic. Facebook does have offices in Canada, so that may make the case a bit more difficult for Facebook to defend. Still, the defendant would need to show that the offence took place in Canada in order to build up the case in the first place.
On appeal in 2008, the BC Supreme Court upheld a lower court decision on the case. The idea of the appeal apparently is that a Yahoo! group was somehow widely seen in the public. The judges, however, were not convinced and the appeal was not successful at that judicial level. So, the question that might be raised here is whether or not these Facebook groups are widely seen. With the case of the Yahoo! groups, the judge seemed unconvinced of this which may have contributed to the case collapsing. So, that could be an avenue worth exploring for Facebook.
Later on that year, Crookes tried to appeal, suggesting that linking opens up sites to liability.
In 2011, the appeal was dismissed. From the ruling:
Held: The appeal should be dismissed.
Per Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.: To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.
Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.
It’s a bit fuzzy for us whether linking has much relevance here, but when you only know about the Crookes case, what else do you have to go on from the judicial side of things?
Perhaps a relevant question here is, what about the situation where users are posting the material. At that point, the question is, what safe harbour protections do Canada have in the first place? While the US does enjoy safe harbour protections, Canada is a different story – essentially lacking those types of protections; that is until 2018. This is thanks to the USMCA (AKA NAFTA 2.0).
In February of 2020, the USMCA was implemented which resulted in a copyright term extension almost no one wanted. However, there was the inclusion of safe harbour protections. From Michael Geist:
The agreement permits implementation of the safe harbour provision in several ways, stating that “a Party may comply with this Article through its laws, regulations, or application of existing legal doctrines as applied through judicial decisions.” While the U.S. approach involves statutory protections, Canada may initially rely on legal doctrines through judicial decisions.
That could involve refraining from implementing new rules that hold Internet companies liable for third party content on their systems and leaving it to the courts to reject claims that run counter to the safe harbour principle. In doing so, officials would maintain the need for responsible conduct by Internet companies without overbroad monitoring or unwarranted takedowns.
Canada has sought to jumpstart the innovation agenda by prioritizing measures that might attract global Internet giants and facilitate the development of home-grown success stories such as Hootsuite and Spotify. The USMCA safe harbour removes a significant legal barrier to that agenda by reducing liability risks for business and providing Canadians with long-overdue safeguards for Internet free speech.
The Internet Society published a one page PDF delving into the text of the agreement and explaining the liability provisions.
Arguably, the USMCA would make it more difficult for such a lawsuit to be successful. Since Facebook is a US-based company, they could rely on the provision to show that they are operating on good faith. What this could do in the process is add judicial precedence that strengthens the USMCA in this respect assuming the case would go down that rout.
On the flip side, the agreement does say that laws can be amended as it pertains to “public morals”. Does defamation qualify in the realm of public morals? That we don’t know for sure. Where does the safe harbour protections end and where does public morals begin in all of this in the lens of defamation?
Navigating online defamation laws in a USMCA ratified Canada can be quite murky at times. You’d think things would be more cut and dry in this country then this, but they aren’t actually. For the time being, though, we have to see if the class action lawsuit gets the green light first. At that point, we can establish that this lawsuit is moving ahead in the first place. We’ll try and keep tabs on this case because it could actually answer some of the questions even we have about how defamation laws are handled in this case.
Update: We attempted to contact Michael Geist for his thoughts on the case. We’ll update should we hear back.
Drew Wilson on Twitter: @icecube85 and Facebook.
