Online Platform Liability in Canada and the U.S.
Introduction
In the interesting recent Ontario case of Thorpe v. Boakye, the court examined the potential liability of online platforms like Google regarding user-generated content, specifically defamatory reviews. This case sheds light on Canadian legal perspectives and contrasts sharply with the U.S. legal approach, particularly under the Communications Decency Act (CDA).
Background of Thorpe v. Boakye
Thorpe v. Boakye involved a dispute between Collette Thorpe and Yunaland Inc. (the plaintiffs) against Audrey Boakye and Google LLC. The case revolves around the alleged defamatory reviews posted on Google’s Local Reviews platform, which the plaintiffs argue have damaged their business reputation.
Facts of the Case
Yunaland Inc. is a daycare business, and Collette Thorpe is Yunaland’s only director. Initially, Audrey Boakye, a former customer of the daycare, posted a Google review with false information about Yunaland on Google’s platform. After this review was removed, further negative reviews emerged from Boakye’s husband and other unknown persons. The crux of the issue centred around Yunaland’s subsequent demand for Google to remove these defamatory reviews, a request that Google resisted unless Yunaland first obtained a court order declaring the reviews defamatory.
Relief Sought on the Motion
Yunaland sued Boakye and Google (and a few others involved in the defamatory Google Reviews) for defamation. Yunaland’s argument for including Google in the defamation claim hinged on the premise that Google, by hosting the reviews, was effectively acting as a “publisher” of defamatory content. Google’s defence rested on the claim that it was not responsible as it neither authored nor had editorial control over the reviews – it neither authored nor published those reviews. Google brought a motion for summary judgment seeking to dismiss the defamation claim against it. (A summary judgment motion is a motion to obtain a judgment in cases where there is no genuine issue for trial with respect to a claim or defence advanced in the litigation.)
Legal Analysis
Ontario’s Approach to Defamation
- Publisher Responsibility: The Ontario court grappled with whether Google’s role as a platform equated to it being a publisher of the content.
- Notice and Action: A key aspect was whether Google’s knowledge of the defamatory content and subsequent inaction could establish its liability as a publisher.
- Complexities in Digital Publishing: The case focuses on the nuanced issues surrounding digital platforms’ responsibilities when user-generated content is potentially defamatory. It was undisputed that the statements posted on Google’s Local Reviews platform were defamatory and pertained to Yunaland. The evidence presented in the motion highlighted a real question of fact, or a combination of fact and law, regarding whether Google, in its role as an online broadcaster, was responsible for publishing the content of the reviews on its Local Reviews platform. Furthermore, there existed a significant question of fact, or of mixed fact and law, concerning whether the reviews were inherently defamatory and if Google, once notified of their defamatory nature, was obligated to remove them.
Dismissal of Summary Judgment
- Need for Detailed Examination: Based on that analysis, the court refused to grant summary judgment in Google’s favour, which underscores the complexities and the need for a full trial to delve into these issues thoroughly. Although the issue is still to be determined, the case leaves open the possibility that an online platform, like Google, can be sued as a publisher for defamatory reviews hosted on its platform that it does not remove.
U.S. Jurisprudence Under the CDA
The outcome in Thorpe v. Boakye underscores the difference in Canadian defamation law compared to our American counterparts. In the United States, the Communications Decency Act (CDA) plays a pivotal role in shaping the legal landscape for online platforms like Google, especially in the context of user-generated content. Section 230 of the CDA provides these platforms with a robust shield, effectively absolving them of liability for the information posted by users. This aspect of the law is deeply rooted in the American emphasis on free speech, influencing the broad interpretation of platform protections against defamation claims. A key area of ongoing legal debate in the U.S. involves wrestling with the definition of “publication” in the digital age, a discussion that critically affects the extent of immunity under Section 230.
Comparative Analysis: Ontario vs. U.S. Jurisprudence
Recent legal challenges in the U.S. have begun to question the breadth of this immunity, particularly in relation to platforms’ editorial actions, such as targeted recommendations or content curation. In stark contrast, Canadian jurisprudence, as evidenced in the Thorpe v. Boakye case, adopts a different stance. Unlike the blanket immunity provided in the U.S., Canadian courts do not automatically exempt online platforms from liability and may consider them liable as publishers. This is particularly the case when platforms are aware of the defamatory nature of the content they host. Thus, the CDA in the U.S. offers extensive protections to platforms from being held liable for user-generated content, a stark contrast to the more plaintiff-friendly approach seen in Canadian law.
Conclusion
For now, Thorpe v. Boakye serves as a pivotal case in understanding the evolving legal landscape around digital platform liability. It highlights a significant divergence between Canadian and U.S. legal systems in handling online defamation. Canadian courts appear more open to considering platforms like Google as publishers and thus potentially liable, whereas U.S. law, under the CDA, leans heavily towards protecting these platforms from such liabilities. This case exemplifies the broader legal and societal challenges in balancing free speech, platform responsibility, and individual rights in the digital era.
