RightsCon Toronto 2018

Countries around the world have sought a solution to the problem of internet intermediary liability, one which balances the need to control the transmission of illegal online content with the right to online expression. Most models, including the notice and takedown model in Europe, impose some degree of responsibility on intermediaries to mediate between those who post content and those who object to it. A key drawback to notice and takedown is that it places intermediaries in an adjudicative role and incentivizes content removal in order to minimize the intermediary’s risk of liability. An alternative is Canada’s notice-and-notice model under its Copyright Act which protects intermediaries against liability but does not offer a direct remedy to those harmed by infringing content.

Emily Laidlaw and Hilary Young have proposed a novel, middle ground approach to intermediary liability in the context of defamation, which they term notice-and-notice plus. Intermediaries would be responsible to pass on notice of defamatory content to the content creator. Only if the creator does not respond in a reasonable time would the intermediary then become responsible to remove the content. Intermediaries would not be required to play an adjudicative role and would not risk liability in defamation. Instead, if they failed to comply they would be subject to a statutory fine.

Notice-and-notice plus was proposed as part of the Law Commission of Ontario’s (LCO’s) Defamation Law in the Internet Age project. This is a large, multi-year research project being undertaken by the LCO, a leading Ontario law reform agency.

In this session, a group of stakeholders knowledgeable in intermediary liability will be invited to workshop Laidlaw and Young’s proposal. The goal is to sketch out the possible elements of the proposal, and its benefits and drawbacks, to determine whether notice-and-notice plus is a feasible and appropriately human rights-promoting approach to the issue of intermediary liability in the context of defamation. All registrants are welcome and will have an opportunity to provide input at the end of the session.