What is the Right Way to Deal with Online Defamation?
Module 5: Defamation
When a person is found to have been defamed, they are entitled to a remedy. However, in practice, the rules on defamation are often punitive and disproportionate. We have already seen that sentences of imprisonment for criminal defamation are disproportionate due to their impact on freedom of expression.(1)
Likewise, fines or damage awards should not be excessively punitive and should instead be aimed at remedying the harm done.
Whenever possible, redress in defamation cases should be non-pecuniary (non-financial) and aimed directly at remedying the wrong caused by the defamatory statement, such as through publishing an apology or correction.
Monetary awards — the payment of damages — should only be considered when other less intrusive means are insufficient to redress the harm caused. Compensation for harm caused (pecuniary damages) should be based on evidence quantifying the harm and the demonstration of a causal relationship with the alleged defamatory statement.
Defamation on new media platforms
The growth of social media in recent years has raised questions about whether existing civil defamation laws and doctrines are adequate. One challenge is the difficulty of adapting remedies to the online era. As detailed in Module 2, once defamatory information is published online, it can be difficult to order it fully removed due to the potential for social media content to ‘go viral’.
Another issue that has arisen in various jurisdictions is whether to treat hyperlinks to defamatory content as akin to publication of this content. Clearly a rigid approach that views all hyperlinks as amounting to publication would have a chilling effect on online expression. However, courts have had to grapple with the thornier question of whether such links can ever be treated as publications.
In Crookes v. Newton, the Supreme Court of Canada held that the use of basic hyperlinks cannot alone, in the absence of actually repeating specific content, count as publication of defamatory material.(2) However, the majority declined to offer any definitive approach to more complex links (such as those embedded in text or images that automatically display content without leaving the original webpage), noting the “inherent and inexorable fluidity of evolving technologies” that made it “unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available”.(3) A minority opinion did not agree with the majority’s approach of not treating any basic hyperlinks as publications and instead preferred a more contextual approach to assessing whether “the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to”(4) while, in another separate opinion, one justice advocated for an approach based on assessing whether a defendant had, on a balance of probabilities, deliberately made defamatory content readily available.(5)
In Magyar Jeti Zrt v. Hungary(6), the European Court of Human Rights established a more contextual approach towards assessing liability for use of hyperlinks to defamatory content, requiring an individual assessment, taking into account the following factors:
– did the journalist endorse the impugned content;
– did the journalist repeat the impugned content (without endorsing it);
– did the journalist merely include a hyperlink to the impugned content (without endorsing or repeating it
– did the journalist know or could he or she reasonably have known that the impugned content was defamatory or otherwise unlawful;
– did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism?
In Loong v. Hiang,(7) the High Court of Singapore considered a Facebook post that contained a link to an article that was alleged to contain defamatory material about Singapore’s Prime Minister, in particular, reports that investigations were “trying to find the secret deals between the two corrupted Prime Ministers of Singapore and Malaysia.”(8) The High Court rejected the ‘bright line’ approach to basic hyperlinks adopted by the majority of the Supreme Court of Canada, instead opting for a “more holistic assessment”, citing Australian and British jurisprudence that the Court noted relied upon the European Court of Human Rights’ judgment in Magyar Jeti Zrt.(9) In applying the contextual approach, the High Court found that the linked article should be deemed part of the Facebook post after reasoning that the link contained no other content other than the link to the article and finding that there was no plausible interpretation of the article other than an endorsement of its content.(10)
Although Loong v. Hiang is an example of attempts to grapple with how to approach hyperlinks and of the cross-pollination of European Court of Human rights and national constitutional jurisprudence on this matter, the Court’s ultimate decision to award damages in a case involving content critical of the Prime Minister raises significant concerns from an international human rights perspective. This case is part of an unfortunate pattern of Singapore’s leaders bringing defamation suits against journalists and political opponents,(11) which can have a chilling impact on freedom of expression. The UN Human Rights Committee, the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights have all underscored that political speech directed against government officials deserves a particularly high degree of protection in view of the public interest in open political debate.(12)