Karen Eltis is a law professor at the University of Ottawa specializing in cyberlaw and AI. She was previously an affiliate at Princeton’s Center for Information Technology Policy and visiting scholar at Columbia Law School.
Long before the arrival of the digital age and the perils of misinformation it has wrought, Mark Twain is reputed to have said that a lie can make its way halfway around the world before the truth has a chance to put its boots on. And today, a hard-earned, solid reputation can be effectively and irreparably dismantled overnight on the internet – and what’s more, the quest for legal remedies for such devastating reputational assaults has exasperatingly borne little fruit beyond the brick-and-mortar world.
Indeed, given the borderless, enduring and instantaneous nature of digital communications, aggrieved plaintiffs faced with the loss of their good name, social connections and livelihood that derives from unrelenting digital defamation or even a mere accusation have been needlessly made to feel powerless. Many are feeling unable to avail themselves of remedies to meaningfully hold to account those responsible for authoring or disseminating the defamatory content, or to ask search engines to deindex the falsehoods from visibility. Instead, these people have been frustratingly left at the mercy of self-styled “neutral intermediaries,” whose approach has been predicated on an anachronistic resistance to deindexing as “censorship,” often irrespective of enshrined Canadian legal principles and protections.
This feeling of helplessness has been needlessly festering amongst Canadians seeking straightforward, common-sense enforcement of time-honoured norms for harm originating online.
This context informs the significance of A.B. v. Google, a Quebec Superior Court decision which, in April, held Google liable for failing to deindex defamatory hyperlinks in search results, and awarded $500,000 in damages to a plaintiff who had been embroiled in a Kafkaesque struggle to restore his good name. In 2007, A.B. – a successful and respected businessman with remarkable international achievements – was flabbergasted to discover what the court recognized as manifestly false – yet destructively pernicious – allegations of a sexual nature that were readily available and recurring on Google searches of his name. As a result, the search engines created even greater calamity around his professional and social life any time someone searched his name.
Emphasizing Google’s duty to take active measures to prevent the dissemination of defamatory content, the court further issued a mandatory delisting injunction to ensure that search results do not continue to feature the offending material.
Significantly – and providing a ray of hope to anyone who has struggled to find a remedy in the seemingly lawless cyber dimension – Quebec Justice Azimudin Hussain eloquently chronicled a too-common scenario where “the Plaintiff found himself helpless in a surreal and excruciating contemporary online ecosystem as he lived through a dark odyssey to have a defamatory post removed from public circulation [resulting in] a devastating form of shunning.”
Plainly put, this decision extends accountability and judicial oversight to the digital realm.
Its implications are noteworthy, not only for the obligation for platforms to de-index going forward, but for empowering both litigants and Canadian courts to defy the chaos that has curiously prevailed in applying time-honoured norms to the changed circumstances of digital expression.
As law professors Emily Laidlaw and Hilary Young cautioned in 2018, “potential defendants may be anonymous, outside of the jurisdiction, or judgment-proof. Intermediaries are sometimes the only viable defendants.” Accordingly, holding curators and disseminators of defamatory content responsible, they observed, may often be the only recourse. Cognizant of this, Justice Hussain set out a set of principles to hold intermediary platforms accountable as disseminators and “curators,” as Google described itself, rather than a “neutral” messenger immune from the reach of Canadian justice.
Moreover, this Quebec decision, whose relevance extends nationwide, reorients cyber defamation analysis toward the principles of Quebec’s civil law system, which is more straightforward, more adaptable, and has a greater emphasis on the contextual reasonableness of the impugned expression that lends itself well to judgments in the digital age. Wronged Canadians can finally have hope that the legal maxim of “where there is a right, there is a remedy” is actually true.
This decision serves to not only curb the daunting emasculation of Canadian courts, but to redress the peculiar powerlessness of cyber-defamation plaintiffs, while recognizing the lack of correction and gatekeeping online, save by the intermediaries themselves.
Finally, but no less importantly, this decision – and others, including Douez v. Facebook, a 2017 Supreme Court case that ruled that a clause in Facebook’s terms and conditions dictating the location of potential customer lawsuits was unenforceable – can be understood as part of a broader paradigm shift. Canadian courts may soon boldly acknowledge that the law must reimagine itself in light of the digital age, as well as the tremendous imbalance of power between everyday Canadians and online intermediaries.