Defamation Law in the Age of Social Media: The Criticisms and Potential Reforms for the Issue of Court Jurisdiction

By Noah Robinson-Dunning

Introduction

How has the internet and social media created new challenges for litigation involving the tort of defamation? It is clear that technology in recent decades has revolutionized the way people in society communicate with each other and share information. With these new technological advancements and forms of communication, some legal commentators and experts have questioned whether defamation law has managed to keep up. One of the key issues that arises in online defamation actions is the issue of jurisdiction. Thanks to the ease in which information can be shared across the World Wide Web, ordinary people can reach audiences of millions without ever leaving the confines of their own homes. This reality has the potential to create a jurisdictional nightmare for courts when parties to an action are in different jurisdictions. It might be the case that the defendant, the plaintiff, and the consumers of the defamatory material are all in separate jurisdictions. This paper will analyze how Canadian common law courts have dealt with the issue of jurisdiction when it comes to online defamation actions, as well as what reforms can be made to clarify the law for prospective litigants.

The law of defamation aims to balance the right to freedom of expression, with the right to not have harm done to one’s reputation.¹ Currently in Canada, as well as most common law jurisdictions, to make out a claim of defamation, a plaintiff must establish three things: the impugned words refer to the plaintiff, the words were published by the defendant to a third party, and the words were defamatory in the sense that reasonable people would believe that they tend to lower the plaintiff’s reputation in the community.² When all three of these elements are made out, there is a presumption that the words are false and that they caused the plaintiff harm.³ Proof of malice or fault is not necessary to establish defamation.⁴ Once defamation is established, there are several possible defences that may apply, including justification (the words were substantially true), absolute or qualified privilege, fair comment, or responsible communication.⁵ Recent Supreme Court of Canada (SCC) decisions have ironed out many of these details for the above defences, such as the rights and privileges of journalists who may report on matters that some parties may find critical or even salacious.

While the above test may seem straightforward, courts have struggled with and disagreed about what jurisdiction will apply when the parties to the action are in different jurisdictions. A recent SCC decision in the case of Haaretz.com v. Goldhar⁶ involved a Canadian businessman who purchased and managed an Israeli soccer team. Haaretz, an Israeli newspaper, published an article both in print and on their website that was critical of Goldhar.⁷ Goldhar brought a defamation action against Haaretz in Ontario, arguing that the article was read by Canadians which caused him to suffer reputational harm in Ontario.⁸ A majority of the SCC ultimately overturned the lower courts and held that while Ontario courts did have jurisdiction, Israel was the more convenient forum to hear the claim.⁹ While the majority of the SCC agreed with this decision, concurring opinions differed as to what the exact test for jurisdiction should involve.¹⁰ The central argument of this paper is that Canadian courts and lawmakers should clarify the legal framework for the issue of jurisdiction in defamation actions in order to provide greater certainty to parties and thus enhance access to justice in our increasingly virtual world.

This paper explores how the issue of jurisdiction has created new problems for courts and litigants involved in online defamatory actions. Part I of this paper will provide the reader with an overview of defamation in the Canadian common law provinces and how recent SCC decisions have addressed the issue of jurisdiction. Part II of this paper will discuss the critiques made by legal commentators and experts pertaining to the current rule for jurisdiction in online defamation actions before Canadian courts. Finally, Part III of this paper will suggest how reforms can be made to the current law to clarify the legal rules surrounding jurisdiction in defamation law actions. With these clarifications, access to justice can be improved for litigants seeking to either protect their public image or defend their right to freedom of expression.

Part I: The Current Framework for Online Defamation Actions

Libel and slander, widely known as the tort of defamation, seeks to vindicate a plaintiff who has suffered harm to their reputation because of untrue statements made by a defendant.¹¹ While it is true that a person’s reputation is inextricably linked to an individual’s human dignity, courts have been careful to balance this with other important values like freedom of expression and freedom of the press, which are protected under the Canadian Charter of Rights and Freedoms (“the Charter”)¹². As outlined in the case of Grant v. Torstar Corp.¹³, defamation is, for the most part, a strict liability tort. To succeed in a defamation action, the plaintiff must demonstrate that the words are defamatory, the words referred to the plaintiff, and the words were “published” to a third party.¹⁴ Once the plaintiff has demonstrated these three crucial elements, the onus shifts to the defendant who may have several defences available to shield them from liability. These defences include justification, privilege, the statements were fair comments on matters of public debate, the statements constitute responsible communication on matters of public interest, the plaintiff consented to the communication, and the dissemination was innocent (which has been particularly useful for subordinate distributors like internet search engines and social media companies themselves).¹⁵

In addition to these available defences, the defendant may also file a motion to the court contesting the court’s jurisdiction. As authors Iris Fischer and Adam Lazier explain, a court’s jurisdiction may not exist when the defamatory material was published in one jurisdiction and then read by internet users all over the world.¹⁶ It is important to note that one of the many factors for a court to consider is the plaintiff’s standing in the community and how their reputation has been impacted. Much like in the case of Haaretz, a plaintiff’s damages before a Canadian court will generally be limited to their reputational damage in Canada or their home province.¹⁷ Thanks to the advent and rapid growth of social media, the issue of jurisdiction has been one of many issues that courts have had to grapple with. While there have been some recent cases dealing with the jurisdictional issue for online defamation actions, there still exists much uncertainty for courts and litigants.

A. How Social Media has Impacted the Tort of Defamation

With the advent of social media, the ability to spread false information and defame individuals has never been easier. This new technology has resulted in courts having to grapple with numerous issues such as what it means to “publish” something.¹⁸ Thanks to some features of social media sites, users can share information merely by clicking retweet, or copying a hyperlink to an article. This was the issue in Crookes v. Newton¹⁹, where the SCC was tasked with determining whether posting a hyperlink to defamatory material on a different website constitutes publication of the defamatory material. Abella J., writing for a majority of the SCC, recognized that the traditional publication rule would likely impose liability for hyperlinking in at least some circumstances.²⁰ However, Abella J. ultimately held that “reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment.”²¹ The majority reached this conclusion in part because when someone refers to a hyperlink, they cannot necessarily control what information the reader will encounter when they click on that hyperlink. For a defendant to be liable, they must have repeated the defamatory content from the linked website in some manner.

While the question of what constitutes publication was the central issue in Crookes, courts have also had to address the issue of intermediary platforms and how jurisdiction, among other issues, plays a role. As previously mentioned, search engines such as Google and social media companies themselves can face liability when defamatory material is posted or not adequately regulated on publicly accessible sites. At common law, publishers are understood very broadly to include not only individuals who are directly responsible for communicating a defamatory message but, also, individuals who repeat, republish, endorse, or authorize it, or in some other way participate in its communication.²² As Emily Laidlaw and Hilary Young discuss in their article, given the international nature of internet communications and the fact that anyone can publish, plaintiffs may not be able to hold to account those most responsible for publishing defamatory statements.²³ Potential defendants to defamatory actions may be anonymous, outside of the court’s jurisdiction, or judgment-proof which sometimes will result in online intermediaries being the only viable defendants. Laidlaw and Young explains that if the plaintiff wants certain defamatory statements removed from an online platform, contacting and/or commencing litigation against the intermediary may be the path of least resistance.²⁴ Because intermediaries benefit from content being posted and read on their platforms, courts in some jurisdictions tend to believe that intermediaries should bear some legal responsibility for what they convey.

With this outline of how defamation law in Canadian common law provinces functions, it is next useful to turn to how jurisdiction plays a role, particularly when the parties or the readers of the defamatory materials are in different jurisdictions.

B. The Issue of Jurisdiction

Soon after the decision in Crookes, the SCC was tasked with determining the test for jurisdiction in internet defamation cases in the case of Black v. Breeden.²⁵ Black involved a libel action commenced in Ontario by Conrad Black, a former newspaper publisher who gave up his Canadian citizenship in 2001 to accept a British peerage. Black had previously been convicted in 2007 by the US District Court in Chicago for fraud and obstruction of justice. Black took issue with the statements made in press releases and reports that were issued by the Board of Directors of Hollinger International, a Chicago-based company that Black used to control.²⁶ Even though Black was exclusively a British citizen and most of the defendants resided in the United States, the SCC held that an Ontario court had jurisdiction to hear the complaint because the statements at issue were posted on the internet and downloaded by individuals in Ontario.²⁷ Much like in the case of Crookes, one of the key issues was whether and when the material had been published, as multiple Ontario newspapers had republished the impugned statements.²⁸ The Court held that the statements were published and had been republished every time the online content had been accessed by readers.²⁹ This meant that even though the content was uploaded in the United States, “publication occurred when the impugned statements were read, downloaded, and republished in Ontario.”³⁰

The current framework for Canadian courts to determine which jurisdiction should apply for online defamation actions seems to depend on several factors. Under current law, the tort of defamation is committed everywhere that a defamatory statement is read, accessed, or downloaded by a third party. However, online defamatory statements may be read simultaneously in jurisdictions around the world. How does a Canadian court know when it should assume jurisdiction over a tort which is potentially committed everywhere at once?

As was outlined in the case of Haaretz, the SCC clarified the three-part analysis for the common law test of jurisdiction.³¹ Firstly, does the court have presumptive jurisdiction over the claim? This depends on several factors that includes, but is not limited to whether the defendant is domiciled or resident in the province, whether the defendant carries on business in the province, where the tort was committed, and whether a contract connected with the dispute was made in the province.³² These factors for presumptive jurisdiction can be determined objectively, and if met, a Canadian court will have presumptive jurisdiction. At this stage in the proceedings, the defendant may seek to rebut the presumption. The second part of the legal test from Haaretz is the rebuttal analysis, in which the defendant can argue that there is only a weak relationship between the claim and the forum.³³ In Haaretz, the majority suggested that the presumption of jurisdiction might be rebutted when the defendant can show that the plaintiff has no real reputation in the chosen jurisdiction.³⁴ The majority, however, failed to provide any more clarity regarding the factors that need to be considered at the rebuttal stage.

An online defamation action may result in multiple forums potentially assuming jurisdiction over the same tort. To determine whether an action should remain in one jurisdiction over another, a court must determine whether the plaintiff has established jurisdiction simpliciter. Jurisdiction simpliciter is a question of law whereby the courts will weigh the strength of the connection between the jurisdiction, the claim, and the parties involved.³⁵ This analysis is done to ensure that tort claims are not tried in a jurisdiction to which the dispute or parties have little or no connection.³⁶ As has been the case in recent online defamation litigation, the test can sometimes be unclear and lacks certainty for litigants.

The final and perhaps most important factor to determine whether a court has jurisdiction is the forum non conveniens analysis. Under this step, the court must conduct a discretionary analysis to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient.³⁷ Factors relevant to determine the most convenient forum include the convenience and expenses for the parties to the proceeding (including witnesses who may need to travel), the choice of law to be applied, the desirability of avoiding a multiplicity of legal proceedings, the desirability of avoiding conflicting decisions by different courts, the enforcement of any judgments, and the fair and efficient working of the Canadian legal system in general.³⁸ In Haaretz, one of the reasons Goldhar and his counsel were successful in showing that Ontario courts had jurisdiction (even though the majority ultimately held that Israel was the more appropriate forum) was because Goldhar was not seeking damages for reputational harm suffered in Israel and because he was willing to pay for the travel and accommodation expenses of Haaretz’s witnesses.³⁹ While paying for the travel and accommodation expenses of the witnesses was required anyway under the Ontario Rules of Civil Procedure⁴⁰ (just like in the BC Rules⁴¹), this would likely be a costly barrier in the litigation process that many plaintiffs with less resources than Goldhar would likely be unable to pay for. Therefore, we can see how the current framework for determining jurisdiction has exacerbated access to justice concerns, such as the costly nature of litigation.

The BC Court of Appeal (BCCA) recently had the opportunity to apply the above legal test for jurisdiction for online defamation claims in the case of Giustra v. Twitter, Inc.⁴² In Giustra, a Canadian businessman was seeking a mandatory permanent injunction and monetary general damages against Twitter for what the Plaintiff described as Twitter’s failure to "delete, remove, cease and prevent publication of the Tweets" that were “false, defamatory, threatening and abusive … about the Plaintiff".⁴³ While Twitter was a corporation based in California, the Plaintiff brought the lawsuit in British Columbia. The lower court had ruled that the facts of the case met the test for BC courts to exercise their jurisdiction.⁴⁴ While Twitter conceded that BC courts did have the presumption of jurisdiction under s. 3 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA)⁴⁵, they argued that there was no “real and substantial” connection between the impugned statements and the province of BC.⁴⁶ Ultimately, the BCCA dismissed the appeal and held that not only had the presumption of BC jurisdiction not been rebutted, but also that California was not the more appropriate forum under the forum non conveniens doctrine based on the relevant circumstances.⁴⁷ This legal framework for jurisdiction in defamation actions applies not only to individuals, but also to major international corporations.

Part II: Critiques the Current Jurisdictional Framework Has Received

Having laid out the current framework for determining jurisdiction in online defamation actions, it is now useful to turn to the criticisms that the legal test has received from legal commentators and experts.

A. Is the Current Legal Test for Jurisdiction Outdated?

As previously discussed, the internet has created a communication revolution, with the ability for online users to communicate with millions of people with no more difficulty than communicating with a single person. This revolution has made it difficult for courts who may be only able to enforce judgments within a particular jurisdiction. Given the unique nature of online communication, some legal commentators have suggested that courts need to take a more flexible approach to the jurisdiction test rather than the traditional approach which has existed for tort claims since long before the internet was created. As Fischer and Lazier argue, the traditional approach of jurisdiction that was utilized by the SCC in Black was “a step in the wrong direction”.⁴⁸ In holding that an Ontario court had jurisdiction rather than an Illinois or UK court, LeBel J. dismissed the argument that the traditional rules of jurisdiction should be changed to accommodate the nature of the internet.⁴⁹ LeBel J. reiterated the traditional test for jurisdiction by stating that “The issue of the assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor – the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party. In this case, publication occurred when the impugned statements were read, downloaded, and republished in Ontario ….”⁵⁰

Even though courts are facing very new issues of what it means to publish something, the majority in Black decided to apply the traditional established rules rather than adopting a more flexible approach for jurisdiction. This traditional approach applied by the majority in Black was a particularly unusual move for the SCC, as the majority in Crookes, months prior, had applied a more flexible approach for the test of jurisdiction.⁵¹ In Crookes, while Abella J. could have followed the traditional approach used in previous cases concerning jurisdiction, she instead recognized that the traditional common law rules had arisen in a very different context.⁵² Abella J. did not feel it would have been appropriate to apply the old common law rules for jurisdiction to a very unique set of facts in an internet defamation case. Fischer and Lazier go on to praise this finding by Abella J., while criticizing the decision in Black as myopic and a failure by the courts to keep up with modern technological changes.⁵³

These criticisms by Fischer and Lazier are echoed by Karen Eltis in her article, in which she argues that revisions need to be made to the current defamation law framework in a changing technological landscape.⁵⁴ Much like Fischer and Lazier, Eltis criticizes the traditional common law test for jurisdiction in tort cases, which she describes as “practically unworkable in the digital age”.⁵⁵ By adopting a flexible and contextual approach to jurisdiction, rather than the traditional test of focusing on where the tort was committed, courts can give greater weight to certain factors.⁵⁶ This flexibility, as outlined in the case of Club Resorts Ltd. v. Van Breda, aims to balance a non-exhaustive list of factors.⁵⁷ As Joost Blom discusses in his article, the factors outlining the flexible approach will allow courts to be adaptable to a wide range of factual situations.⁵⁸ While the flexible model may have the potential to sacrifice clarity for litigants, it gives courts the ability to weigh all the facts of the case to better determine the most appropriate jurisdiction for online defamation actions.

B. The Concern of ‘Libel Tourism’

As Nicole Manzo explains in her article, libel tourism exists when plaintiffs act strategically to choose a plaintiff-friendly forum for bringing their defamation action.[59]⁵⁹ The effect of libel tourism is that the balance between freedom of expression and protection of reputation is heavily swayed, with defendants being subjected to a lawsuit in a jurisdiction in which they have little or no connection. This danger is especially present for online defamation actions because the parties to the action can be located in multiple jurisdictions. While some legal commentators have claimed that the flexible jurisdiction approach can provide plaintiffs with the opportunity to “shop”⁶⁰ for whichever forum best suits them, this claim is unfounded for multiple reasons according to Matthew Castel.⁶¹

In his article, Castel claims that the concern for libel tourism arising from the flexible approach to jurisdiction is overstated. Firstly, Castel argues that, under the Club Resorts framework for jurisdiction, the connecting factors between the facts of the case and the proposed jurisdiction are not irreputable.⁶² This means that the defendant will have the opportunity to establish facts demonstrating that the presumptive connecting factors do not create any real relationship between the subject matter of the litigation and the proposed forum. Castel is careful to distinguish libel tourism from the choice of law rule, with the latter principle being focused on where the reputation of the plaintiff has been most harmed.⁶³ This principle was acknowledged by the SCC in Black, where the Court conceded that the lex loci delicti (where the wrongful act occurred) ought to be abandoned in some circumstances in favour of an approach based on where the most harm to reputation occurred.⁶⁴ This choice of law example also existed when Canadian pop-star Justin Bieber filed a defamation lawsuit in Canada against a celebrity gossip blog. Despite Bieber and the blog both being domiciled in the United States, the defamatory article was accessed by IP addresses in Canada. Bieber was able to show that he had a substantial connection to Canada, including millions of fans, and that the article resulted in reputational damage to him in Canada.⁶⁵ As Manzo explains in her article, this is not an example of libel tourism by Bieber, but merely a choice of law issue, where the plaintiff was able to demonstrate that a Canadian court was the more appropriate forum.⁶⁶

Castel concludes his article by arguing that to establish jurisdiction simpliciter, Canadian common law courts should continue to assume jurisdiction based on the place where the tort was committed. This rule would not promote libel tourism, according to Castel, because it is kept in check by the doctrine of forum non conveniens and also by the choice of law rules.⁶⁷ It appears that Castel is confident that the recent calls for the flexible approach will result in a positive change for courts and litigants, and that certainty and predictability will not be sacrificed by plaintiffs wishing to game the system and engage in libel tourism.⁶⁸

Despite Castel’s argument that the concern for libel tourism is overstated, courts have determined that the threat of libel tourism is real and can be a serious concern in online defamation claims. An example of this was in the SCC case of Banro Corp. v. Éditions Écosociété Inc., in which it was alleged that the plaintiffs were engaging in libel tourism by choosing the forum of greatest juridical advantage.⁶⁹ In Banro, the plaintiff, an international mining corporation based in Ontario, brought an action in Ontario for defamation. The plaintiff alleged that the defendant, a corporation based in Montréal, published statements accusing the plaintiff of human rights violations.⁷⁰ Even though the defendant had no real connection to Ontario, and the act of publishing was committed in Quebec, the SCC held that there were sufficient connecting factors between the facts of the case to Ontario. While commentators such as Manzo might consider this jurisdictional test to be rather “lenient”⁷¹, Canadian courts are aware of the threat of libel tourism and are willing to take action to prevent it.

Part III: Potential Solutions and Legal Reforms

With these criticisms in mind, the current jurisdictional framework for online defamation actions is clearly far from perfect. This next section will analyze two key proposed solutions for how courts and lawmakers can reform defamation law.

A. How Courts and Lawmakers can Create Greater Certainty for Litigants

As has been previously discussed, one major issue with the current framework courts utilize to determine jurisdiction is a lack of certainty. While it is important for courts to take a comprehensive look at all of the connecting factors pertaining to the parties and the published materials at issue, this test can leave litigants very uncertain about which jurisdiction will be engaged and which court will be willing to hear their case. As the Law Commission of Ontario (LCO) recommends in their 2020 report, certain steps should be taken to promote further certainty in jurisdiction motions.⁷² One of the ways in which the LCO believes predictability in the process can be added is at the rebuttal analysis stage. Even in the recent SCC case of Haaretz, the rebuttal stage of the jurisdiction analysis remains ill-defined and would benefit from the additional factor of who the target audience of the publication was.⁷³ This “targeting factor” exists in US jurisprudence and allows courts to examine whether a publication was targeted at a specific audience (for example, readers in one province or state).⁷⁴ By adding this discretionary factor to the rebuttal analysis, courts will, according to the LCO, help improve certainty and, correspondingly, improve access to justice for internet defamation cases.⁷⁵

This targeting factor was briefly considered by LeBel, J. in Black. In Black, it was clear based on the evidence that, after issuing their press releases, the defendants targeted and directed their statements to a Canadian audience by providing their contact information to Canadian media outlets.⁷⁶ While some might consider this evidence to be a strong factor in the rebuttal analysis, neither LeBel nor the ONCA commented on whether the “targeting approach” should be adopted in Canadian common law.⁷⁷ While the aim of this paper is not to conduct a comprehensive comparison between the jurisdictional framework for defamation actions in different common law countries, courts in Australia and the United States have utilized this targeting factor which has been successful in creating a greater level of certainty for litigants.⁷⁸

This recommendation for greater certainty is echoed by Blom in his article, only with Blom proposing a very different reform than the LCO. Blom argues that the real and substantial approach is too uncertain, and instead of a malleable and multi-factorial test, hard rules should be in place when it comes to assuming jurisdiction.⁷⁹ According to Blom, with a precisely defined presumptive connecting factor, the exercise of applying it will be able to turn on fine distinctions.⁸⁰ As previously discussed, the flexible model for jurisdiction can create uncertainty for litigants. This is especially true when it comes to the presumptive connecting factors analysis. While Club Resorts was not a defamation action, the courts had the opportunity to abandon or modify this approach for assuming jurisdiction set out in a decade before in Muscutt v. Coucelles.⁸¹ The ONCA in Club Resorts did exactly this by reproducing the content of the CJPTA (a statute that did not exist at the time of Muscutt).⁸² In other words, whenever one of the connecting factors is shown to exist, a real and substantial connection justifying the jurisdiction in question will be presumed to exist.⁸³ This, as Blom explains, was a step in the right direction for the common law, as litigants now have a greater degree of certainty as to what jurisdiction will apply to their case.⁸⁴

B. Adopting the Most Substantial Harm Test for Choice of Law

An additional reform suggested by the LCO, which could increase access to justice by adding clarity and predictability for litigants, is to adopt the “most substantial harm” test for the choice of law. As previously mentioned, the choice of law can sometimes be distinguished from jurisdiction. As Karaksatanis J. articulated in her concurring opinion in Harretz, the choice of law test is a component of forum non conveniens and requires the court to ask, “whether the plaintiff’s chosen jurisdiction would be applying foreign law, which may diminish efficiency and raise a risk of forum shopping.”⁸⁵ This, the LCO contends, would positively impact access to justice, as the difficulty and the expense of proving foreign law in a Canadian court may create a significant barrier to proceeding with a defamation claim (whether it be Ontario, BC, or any common law province).⁸⁶ By adopting this test in the choice of law analysis, the main purpose of defamation law - the protection of people’s reputation - will be advanced. This is because, by connecting claims with the forum where the most serious harm has occurred, the test achieves the perfect balance between protection against harm and freedom of expression.⁸⁷ The most substantial harm test can be seen as the polar opposite of the lex loci delicti test and is also more consistent with the reasonable expectations of the publisher.

While some may argue that this test gives an unfair advantage to plaintiffs as there is no way defendants can predict where exactly harm will occur because of an online publication, this argument lacks credibility for multiple reasons. As Castel explains, alleged defamers should be aware that what they post online can reach audiences around the world, and thus result in potential harm in a number of places.⁸⁸ This principle was perhaps best articulated by Nordheimer J. in Barrick Gold Corp. v. Lopehandia where he stated “If a person issues a statement and places that statement in a normal distribution channel designed for media attention and publication, a person ought to assume the burden of defending those statements, wherever they may damage the reputation of the target of those statements and thereby cause the target harm, as long as that harm occurred in a place that the originator of the statements ought reasonably to have had in his, her or its contemplation when the statements were issued.”⁸⁹

The most substantial harm test for questions of jurisdiction and choice of law seems to have support amongst certain judges and legal commentators. While this test is not currently a part of the jurisdictional framework for online defamation actions (it was obiter in Haaretz⁹⁰), it would have the effect of having the claim being heard in the forum that is most closely connected to the dispute in question.

Finally, one of the ways in which the most substantial harm test could be implemented in Canadian defamation law is by incorporating it into legislation such as the Libel and Slander Act⁹¹, the CJPTA⁹², and the Supreme Court Civil Rules.⁹³ By making amendments to these statutes, these reforms would be codified into law and litigants would have a clear idea as to which forum would be able to assert jurisdiction and be the most appropriate for hearing their claim. Additionally, defendants would better understand the consequences of their online publications and would be less capable of hiding behind the laws of their own country or jurisdiction when a Canadian court is the more appropriate forum to hear the dispute.

Conclusion

In conclusion, as technology and forms of communication continue to advance and develop, courts and lawmakers should strive to make necessary reforms to Canadian defamation law. Thanks to new forms of communication and novel ways in which online users can publish and republish materials, key aspects of defamation law have been rendered outdated. These changes to defamation law seem particularly necessary for the jurisdictional framework when the parties, the readers, and the alleged harm are in different jurisdictions. In the interests of access to justice and of promoting better clarity for prospective litigants, certain reforms to the law are necessary.

One of the criticisms that the current framework for jurisdiction has received is that the traditional test for jurisdiction in tort claims lacks the necessary flexibility for modern-day online defamation actions. Conversely, some legal commentators have argued against a more flexible approach, as this could potentially lead to libel tourism in which the plaintiff will shop for a forum that is most advantageous to their case. Some of the proposed changes made by judges and legal commentators to the jurisdictional framework include increasing certainty for litigants by adding connecting factors to the jurisdictional framework such analyzing who the target of the defamatory material was and determining where the plaintiff suffered the most harm. These reforms, if implemented, would be positive changes as they would uphold the key purpose of defamation law which is the protection of reputation from harm.

Overall, lawmakers and courts should be encouraged to make these changes in order to improve access to justice. Given the costly and time-consuming nature of civil litigation, updates and reforms to defamation law will have a positive impact for all parties involved and can be done in a way that balances the two pillars of defamation law – Charter-protected freedom of expression with the right to protect one’s reputation from harmful attacks.

Bibliography

Jurisprudence

Banro Corp. v Éditions Écosociété Inc., [2012] SCC 18, 2012 CarswellOnt 4270.

Barrick Gold Corp. v Lopehandia, [2004] ONCA 131, 2004 CarsewllOnt 2258.

Black v Breeden, [2012] SCC 19, 2012 CarswellOnt 4272.

Club Resorts Ltd. v Van Breda, [2012] SCC 17, 2012 CarswellOnt 4268.

Crookes v Newton, [2011] SCC 47, 2011 CarswellBC 2627.

Giustra v Twitter, Inc., [2021] BCCA 466, 2021 CarswellBC 3895.

Grant v Torstar Corp., [2009] SCC 61, 2009 CarswellOnt 7956.

Haaretz.com v Goldhar, [2018] SCC 28, 2018 CarswellOnt 8883.

Muscutt v Courcelles, [2002] ONCA 115, 2002 CarswellOnt 2313.

Legislation

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule   B to the Canada Act 1982 (UK), c 11 [Charter].

Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28.

Libel and Slander Act, RSBC 1996, c 263.

Rules of Civil Procedure, RRO 1990, Reg 194.

Supreme Court Civil Rules, BC Reg 168/2009.

Secondary Materials: Articles

Blom, Joost, "New Ground Rules for Jurisdictional Disputes: The Van Breda Quartet" (2012) 53:1 Can Bus LJ 1.

Castel, Matthew, "Jurisdiction and Choice of Law Issues in Multistate Defamation on the Internet" (2013) 51:1 Alta L Rev 153.

Drucker, Mitchell, "Canadian v. American Defamation Law: What Can We Learn from Hyperlinks" (2013) 38 Can-US LJ 141.

Eltis, Karen, "Is Truthtelling Decontextualized Online Still Reasonable: Restoring Context to Defamation Analysis in the Digital Age" (2018) 63:3 McGill L J 553.

Fischer, Iris & Lazier, Adam, "Crookes v. Newton: The Supreme Court of Canada Brings Libel Law into the Internet Age" (2012) 50:1 Alta L Rev 205.

Laidlaw, Emily B. & Young, Hilary, "Internet Intermediary Liability in Defamation"(2018) 56:1 Osgoode Hall L J 153.

Manzo, Nicole M., "If You Don't Have Anything Nice to Say, Say It Anyway: Libel Tourism and the SPEECH Act" (2015) 20:1 Roger Williams U L Rev 152.

Stone, Adrienne & Williams, George, "Freedom of Speech and Defamation: Developments in the Common Law World" (2000) 26:2 Monash U L Rev 362.

Secondary Materials: Books

Brown, Raymond E., Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Toronto, Ontario: Carswell, 2021) (loose-leaf updated 2021, release 1994).

Downward, Peter A., The Law of Libel in Canada, 4^th ed (Toronto, Ontario: LexisNexis, 2018).

Sookman, Barry, Computer, Internet, and Electronic Commerce Law (Thompson Reuters, 2021) (loose-leaf updated 2021, release 1989).

Takach, George, Computer Law, 2^nd ed (Toronto, Ontario: Irwin Law, 2003).

Secondary Materials:  Commission Reports

Defamation Law in the Internet Age, Final Report (Ontario: Law Commission of Ontario, 2020).

Endnotes