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Reputation Systems, Adr, Industry Regulation and Other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age: Proposal for Reform

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Reputation Systems, Adr, Industry Regulation and Other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age: Proposal for Reform ARE WE ASKING TOO MUCH FROM DEFAMATION LAW? REPUTATION SYSTEMS, ADR, INDUSTRY REGULATION AND OTHER EXTRA-JUDICIAL POSSIBILITIES FOR PROTECTING REPUTATION IN THE INTERNET AGE: PROPOSAL FOR REFORM Defamation Law in the Internet Age September 2017 Commissioned by the Law Commission of Ontario Prepared by Emily Laidlaw, Ph.D., Associate Professor, University of Calgary Faculty of Law The LCO commissioned this paper to provide background research for its Defamation in the Internet Age project. The views expressed in this paper do not necessarily reflect the views of the LCO. Are we asking too much from defamation law? Reputation systems, ADR, Industry Regulation and other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age Proposal for Reform Emily Laidlaw, Ph.D., Associate Professor, University of Calgary Faculty of Law Defamation Project Commissioned Research Paper: Laidlaw TABLE OF CONTENTS I. INTRODUCTION............................................................................................................4 II. REPUTATION AND REMEDIES......................................................................................8 A. Reputation in a Digital World......................................................................................12 B. What Complainants Want...........................................................................................19 C. Outcomes for Online Defamation Complainants........................................................25 III. REFORMING DISPUTE RESOLUTION...........................................................................29 A. Proposals for Defamation Reform..............................................................................33 1. Early Intervention.................................................................................................34 2. Streamlined Processes..........................................................................................35 3. Alternative Systems..............................................................................................38 a) Proposals for specialist defamation bodies....................................................39 b) Industry regulators..........................................................................................43 i) Media models.....................................................................................43 ii) Non-media models..............................................................................49 B. Online Dispute Resolution..........................................................................................55 1. Strengths and Weaknesses of ODR.......................................................................57 2. ODR in Practice.....................................................................................................61 a) Company-led.........................................................................................................61 b) Government-pushed.............................................................................................65 c) Government-created............................................................................................67 C. The Role of Intermediaries.........................................................................................72 Commissioned by the Law Commission of Ontario 2 September 2017 Defamation Project Commissioned Research Paper: Laidlaw IV. RECOMMENDATIONS FOR CHANGES TO THE LAW..................................................84 A. Summary of Findings........................................................................................................84 B. Recommendations............................................................................................................88 1. Traditional Litigation and Improving Access to Justice...............................................89 2. Incentivizing Companies to Regulate their Platforms.................................................92 3. Creation of an Online Tribunal....................................................................................95 a) Features of a defamation tribunal........................................................................98 i) Mandatory or voluntary? .......................................................................100 ii) Private or public? ...................................................................................101 iii) Legal representation? ............................................................................102 iv) Damages? ...............................................................................................103 v) Other? ....................................................................................................104 b) Business case......................................................................................................105 ACRONYMS....................................................................................................................107 Commissioned by the Law Commission of Ontario 3 September 2017 Defamation Project Commissioned Research Paper: Laidlaw I. INTRODUCTION This research paper examines the question of whether we are asking too much of defamation law in a three-part paper focused on reputation, resolution and recommendations. The focus is on online defamation law. However, the kinds of resolution mechanisms explored in this paper potentially have a wider application. The research is couched in a broad internet governance framework, which is the backbone of my scholarly focus, and seeks to test what it would look like if various remedial mechanisms were deployed or incentivized through provincial legislation. The question is whether any such mechanisms improve access to justice or resolution for those who suffer reputational harm from online defamation. In other words, this paper seeks to answer the following question: given the reputational harms suffered in the digital age, what kinds of dispute resolution mechanisms would improve access to justice and resolution to complainants? This paper focuses broadly on any defamation published online, including social networking sites, search engines, news media and other forms of interactive communications, such as comments sections, message boards and photo sharing. To the extent that this paper raises questions about intermediary liability, I will refer readers to my Law Commission of Ontario (LCO) commissioned paper with co-author Dr. Hilary Young, Associate Professor at the Faculty of Law, University of New Brunswick, “Internet Intermediary Liability in Defamation: Proposals for Statutory Reform” (“intermediaries paper”).1 Commissioned by the Law Commission of Ontario 4 September 2017 Defamation Project Commissioned Research Paper: Laidlaw In Section II, I will identify the challenges of resolving online defamation disputes. This involves asking some of the following questions. What does reputation mean in the digital age? What unique problems are posed to legal regulation by online defamation? Why do defamation plaintiffs sue? What outcomes do complainants want to resolve a defamation dispute? How are these concepts of reputation and outcomes linked for online defamation disputes? The answers to these questions provide the foundation for sections III and IV. In Section III, I examine various proposals for reforming resolution of legal disputes, both defamation and non-defamation specific. I draw ideas from a variety of industries for this analysis, including domain names, privacy, press, finance and construction, and I consider lessons from recent defamation reform in the United Kingdom. The paper explores the gamut of streamlined court processes, defamation regulatory bodies and non-defamation industry regulators (including co and self-regulatory bodies). I examine online dispute resolution (ODR), including techno-legal solutions, online courts or tribunals, company dispute systems, and government mandated alternative dispute resolution (ADR). I also examine the role of the intermediary in providing resolution to defamation disputes and how that can be conceptualized and incentivized through legislation. In Section IV, I make recommendations to reform the law, including conceptualizing a dispute resolution framework that is aimed to meet the needs identified in section II and builds on lessons from section III. Commissioned by the Law Commission of Ontario 5 September 2017 Defamation Project Commissioned Research Paper: Laidlaw The underlying concern in this report is improving access to justice, thus it is important to identify how the term is used in this paper. Access to justice can mean several things. It tends to be conceived using two-tracks. The first, defines it as improving access to legal services. The second asks broader questions about what justice means.2 Trevor Farrow surveyed the public on its views of justice and one of the themes emerging from the interviews was that access to justice was “for the most part understood as access to the kind of life – and the kinds of communities in which – people would like to live. It is about accessing equality, understanding, education, food, housing, security, happiness, etc. It is about the good life – that is ultimately the point.”3 Flowing from this, Farrow states that efforts to reform the law to improve access to justice should consider the public’s views as central to their efforts or otherwise risk “alienation or exclusion” of this public.4 In the context of defamation law, Alastair
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